Discrimination burden of proof debate hots up

Date: 04/04/1996

TRADE unions and employers have attacked the European Commission's planned changes to laws on the burden of proof in sex discrimination as far too vague.

With the six-week period for the second-stage of consultation now over, the social partners are putting the finishing touches to their positions on the issue.

But both sides are waiting for the Commission to make its intentions clear when it finally presents formal proposals for a directive later this year.

In the consultation paper sent out to the social partners, the Commission said only that it planned “to change the burden of proof rather than reversing it altogether”, but failed to go into any more detail.

Not surprisingly, while both employer and trade union organisations have criticised the Commission for the vagueness of the paper, they have very different views on what form its concrete proposals should take.

The European Trade Union Confederation (ETUC) is pressing the Commission to back a full-scale reversal of the burden of proof, requiring employers to prove that their actions are not motivated by sexual discrimination rather than leaving it to the plaintiff to prove wrongdoing.

The unions are concerned at the Commission's claim that “enterprises will not have to adopt specific measures to adapt to the change in procedure”.

They also argue EU legislation should be aimed at avoiding legal action wherever possible, rather than simply making litigation easier to sort out.

“We're also looking for a precise definition of indirect discrimination, as was included in an earlier proposal,” said an ETUC official, adding that clearer guidance was needed on what objective reasons, unrelated to sex, could justify different treatment of men and women.

Groups representing employers of all shapes and sizes take the opposite view. “It should not be up to the entrepreneur to prove that he hasn't discriminated on the basis of sex,” claimed an official at UEAPME, the lobbying group for small and medium-sized enterprises.

This was echoed by an official at the employers' federation UNICE, who said: “It's got to be seen as a good thing that the Commission isn't talking about completely reversing the burden of proof.”

UNICE maintains that questions of sex discrimination are already sufficiently covered by national laws and court rulings, and insists “there is no need for specific EU legislation in this area”. The federation believes that, if an EU framework is introduced, it must allow a large degree of flexibility for national courts to make decisions on the merits of each individual case.

In its submission to the first stage of the consultation, UNICE justified its resistance to the idea on the grounds of the potential costs to employers and the danger that to reverse the burden of proof “could only discourage recruitment of persons belonging to categories protected - and rightly so - against discrimination”.

The Commission's latest initiative stems from a belief that case-law on sexual discrimination has not been applied in a uniform fashion throughout the EU, something which would be rectified by a framework directive.

Social Affairs Commissioner Pádraig Flynn announced he was to pursue the matter through the Maastricht Treaty's Social Protocol in September 1994, following repeated failures to secure unanimity on a proposal dating back to 1988, because of opposition from the UK.

Flynn is evidently optimistic about unblocking the impasse through the use of the protocol, which only requires a proposal to be agreed by qualified majority and excludes the UK because of its much-publicised opt-out.