Flynn plans new equality battle

Date: 30/05/1996

By Michael Mann

SOCIAL Affairs Commissioner Pádraig Flynn is planning a major EU offensive on equal opportunities in the workplace.

Following lengthy consultations with EU employers and unions, Flynn will tell social affairs ministers next week that he plans to come forward soon with firm proposals to change the burden of proof in sexual discrimination cases.

The Commissioner is also preparing to send the social partners a consultation document on ways to reduce sexual harassment in the workplace. This is likely to call on medium-sized companies to appoint a senior manager responsible for handling harassment allegations.

Aware that a number of member states are likely to resist any attempt to force through legislation from the outset, the Commission is seeking the views of those who will be most affected by its proposals.

But officials stress that the hope is to work towards a directive on the issue.

In a third initiative, Flynn is working on a code of practice on equal pay for work of equal value. This would provide workers with information on the sort of wage they should be receiving and encourage them to claim higher pay if they can prove their work is of equal value to that of more highly-paid counterparts.

Flynn has expressed the hope that such a code of practice would “succeed where legal procedures have failed to achieve equality in practice”.

With both the employers' federation UNICE and the European Trade Union Confederation (ETUC) clear that the scope for negotiation on changing the burden of proof in sex discrimination cases is limited, the Commission will bring forward a proposal for legislation in July.

According to Flynn, “the essence of this proposal is that the plaintiff would be required to provide precise and consistent factual evidence of probable or presumable discrimination.

“The defendant would then have to prove that there has been no infringement of the principle of equal treatment between men and women.”

In its response to the Commission's second stage consultation on the subject, UNICE stresses that it is not convinced of the need for European legislation on the issue and criticises the study on which the Commission is basing its proposals as “highly-debatable and reflecting an approach which is not neutral”.

With legislation likely to have “not inconsiderable consequences for companies”, industry would like a non-binding framework which would leave much to the discretion of judges in deciding whether an employee had been discriminated against on the grounds of gender. UNICE also opposes any move towards defining “indirect discrimination”, which the ETUC insists should be included in the draft directive.

Commission officials stress they have no intention of reversing the burden of proof completely, but merely want to establish the means for it to be shared between plaintiff and defendant.

Until now, they argue, women who allege a breach of the principle of equality have generally had to bear the full burden of proving their case. The Commission also believes there has been a failure to apply case-law from the European Court of Justice uniformly throughout the Union.

In the other major issue under consultation, there are clear indications that the social partners are moving towards negotiating on proposals for conditions governing part-time and 'atypical' work in the EU.

With the time-limit for the second stage consultation expiring on 14 June, UNICE's council of presidents is due to announce whether it wants to negotiate on 19 June. A spokeswoman for the organisation confirmed that “it looks like we are moving towards a negotiation”.

The ETUC is keen to emphasise that any negotiation must cover the whole range of atypical work, ensuring fair remuneration and social security cover for part-time workers and proper regulation for groups such as those who work from home. It is concerned that UNICE takes a very narrow view of part-time work.

“Proper regulation for part-time work is particularly important as most people in this sector are women, who are already discriminated against in other ways,” said an ETUC official.

The ETUC regards the part-time sector as a useful tool in Jacques Santer's 'confidence pact' for employment, but points out that “the biggest handicap it faces is that it is still regarded as a second class form of work”.