Analysis of EDF on the Employment Directive transposition Future challenges

1. Analysis of EDF on the Employment Directive transpositionFuture challenges

2. Important issues linked to transposition of the 2000/78 • Definition of disability • Scope of the directive • Failure to provide reasonable accommodation • The need of dissuasive sanctions • Positive actions • Information • Civil dialogue • Compliance with national laws • Monitoring of implementation • Litigation • Social partners and social dialogue

3. 1. Definition of disability • The definition of disability is a national competence • The directive does not provide any guideline on the extent of that definition • The consequence is that: • The states adopt narrow definitions • Some worrying examples: • Using percentages for defining disability and stating minimum thresholds to be covered by the directive (30% in Germany and 33% in Spain) • In the absence of a social model definition, the countries use their medical definitions (mainly those to calculate « invalidity pensions ») • Commission should provide guidelines in the definition and consider a wrong implementation those using narrow definitions

4. 2. Scope of the directive • The lack of legislation on discrimination in areas such as transport and good and services is limiting the effectiveness of the directive • Some countries have enjoyed the opportunity of the directive to enlarge the scope (UK, Belgium, France…) • The transposition only of the scope of the directive will impact on the employment of disabled people less than in those countries with comprehensive legislation • The successful campaign 1 million 4 disability collected 1.288.000 signatures supporting another directive

5. Social Partners / Scope • 3.1.d “membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.”

6. 3. Failure to provide reasonable accommodation • When our analysis was done, Estonia, Italy and Poland had not transposed this provision • The fact of being in a separate article creates the impression that reasonable accommodation is not a form of discrimination • Sometimes there are differences between people seeking employment and those already employed • Infringement procedures for countries not transposing the directive and guidelines to ensure that failure to provide reasonable accommodation is discrimination.

7. 4. The need of dissuasive sanctions • The condition of dissuasive sanctions have been mainly forgotten • Just Italy and Finland seem to have sanctions that could discourage potential discriminators • The consequence is that in many countries companies prefer to pay sanctions (if they exist) than including people with disabilities in their staff. • Including non-dissuasive sanctions should be considered an infringement of the directive

8. 5. Positive actions • Non discrimination + positive action = social inclusion • Cooperation between trade unions and disabled people’s organisations specially important on this field • Positive measures can be trainings on the directive, traditional quota systems and incentives, support to employers and employees, etc…

9. 6. Information • Information on the directive has to tackle trade unions and organisations of people with disabilities • We need a training period for people to understand their rights. • We need to train employers also in the content of the directive • People could feel excluded from the transposition period

10. 7. Civil dialogue • Some good examples of cooperation; Austria, France, Denmark, Czech Republic… • It is important to note that consultation with equality bodies is not consultation with civil society • Where consultation with disabled people occurred the result was a higher quality of the legislation including also higher expectations for disabled people’s organisations

11. 8. Compliance with national laws • The directive was « copy-pasted » in the national laws. • The existing contradicting laws create uncertainty • The transposition of the directive had required the participation of a group of ministries and not just the employment and social affairs • This leaves the responsibility for legal certainty to judges

12. Social Partners / Compliance Art.16.b any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers' and employers' organisations are, or may be, declared null and void or are amended.

13. 9. Monitoring the implementation • Important area of cooperation with trade unions • The charge of proving discrimination lies on the shoulders of the disabled person • The consequence is that the person finds him/herself fighting alone the discriminator • Some countries have equality bodies but this is not foreseen by the directive • In the absence of equality bodies and ombudsman with capacity ton integrate disability demands, the role of the trade unions is fundamental

14. Social Partners / implementation Art.18. “Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 2 December 2003 at the latest or may entrust the social partners, at their joint request, with the implementation of this Directive as regards provisions concerning collective agreements. In such cases, Member States shall ensure that, no later than 2 December 2003, the social partners introduce the necessary measures by agreement, the Member States concerned being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.”

15. 10. Litigation • There is a low level of people with disabilities going to the court of justice • Because of unbalanced forces • Non existence of equality bodies • Discrimination in recruitment is never brought to court • Moreover in some countries (Finland, Italy, Latvia, Portugal or Ireland) disabled people’s organisations are not entitled to represent a disabled person victim of discrimination • A proactive strategy by equality bodies, preventing “ex ante” discrimination is important to prevent future discrimination

16. Social Partners / Defence of rights Art.9.2. “Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive”.

17. 11. Social Partners / Social dialogue (art. 13) • 1. Member States shall, in accordance with their national traditions and practice, take adequate measures to promote dialogue between the social partners with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct and through research or exchange of experiences and good practices. • 2. Where consistent with their national traditions and practice, Member States shall encourage the social partners, without prejudice to their autonomy, to conclude at the appropriate level agreements laying down anti-discrimination rules in the fields referred to in Article 3 which fall within the scope of collective bargaining. These agreements shall respect the minimum requirements laid down by this Directive and by the relevant national implementing measures.

18. For More Information • www.edf-feph.org • javier.guemes@edf-feph.org