Equal opportunities
A raft of legislation being passed throughout Europe is meeting EU guidelines on employment law reformAll people are equal, but some are more equal than others. While this Orwellian aphorism still holds sway in many spheres of society, if the lawmakers have their way it will soon become a relic of the past, in the workplace at least. A wave of employment legislation that is surging around the world seeks to sweep away prejudices and evoke a sea change in policies and attitudes, with employers placed at the helm of the reforms. If the efforts pay off, they will ensure that everyone gets a fair bite of the employment apple.
January 24, 2007 at 09:59 PM
5 minute read
All people are equal, but some are more equal than others. While this Orwellian aphorism still holds sway in many spheres of society, if the lawmakers have their way it will soon become a relic of the past, in the workplace at least. A wave of employment legislation that is surging around the world seeks to sweep away prejudices and evoke a sea change in policies and attitudes, with employers placed at the helm of the reforms. If the efforts pay off, they will ensure that everyone gets a fair bite of the employment apple.
Germany has caught up with its EU obligations regarding equality directives. The law has had a torrid and protracted birth, evolving from a draft anti-discrimination law tabled by the previous Social Democrat-Green Government in December 2004. The draft drew heavy fire from opposition Conservatives who condemned its provisions as far exceeding the European requirements, placing German employers at an undue competitive disadvantage, and it failed to make it onto the statute books before last September's general election.
But when the new conservative-social democrat coalition took up the reins on the implementation of the law earlier this year, the controversial draft was simply resurrected without substantial amendment – much to the dismay of its critics. True, the legislation has been rebranded as the General Law on Equal Treatment and some effort has been made to address the gravest concerns of its Conservative detractors, but otherwise little has changed.
As before, the law applies to employees, prospective employees and former employees, and prohibits discrimination on the grounds of ethnic or racial origin, gender, sexual orientation, belief, age and disability – although church employers have now been granted a greater degree of flexibility in this regard. The original requirement that employers take any and all steps necessary to guard against discrimination has been relaxed, but not significantly.
Indeed, further employee-friendly provisions have been added to the final version, urging trade unions and works councils to promote equality within the ambit of their existing activities and empowering them to prosecute employee claims in case of flagrant discrimination, even without the employee's consent.
However, the new legislators scotched a more radical proposal that would allow disgruntled employees to avoid court altogether by assigning their compensation claims to anti-discrimination organisations, which could take up the cudgel on their behalf in cases where attorney representation was not legally required. In a further concession, the statute of limitations for filing a discrimination suit was halved from six months to three.
But these revisions failed to appease those Conservatives not involved in the legislative process, who were again vociferous in their criticism. Nonetheless, the contentious law came into force on 1 August. Premier Angela Merkel explained the imbroglio to the party faithful as part and parcel of the inevitable 'give and take' of a grand coalition Government.
The Spanish legislature, too, is mulling over proposals for broad-brush legislation to combat sexism in all avenues of society. The Bill promises to revolutionise the workplace by demanding zero tolerance of gender-based discrimination.
Traditional reactive approaches to the problem will no longer be sufficient, say Sonia Cortes and Patricia Molina of Cuatrecasas. Instead, employers must be proactive in inculcating a culture of equality in their workforces. To this end, they must draw up and execute a detailed equality plan, in collaboration with the works council, affording equal opportunities across all strata of the organisation and in all areas of working life.
Most controversially, in limited liability companies, female representation in the boardroom must reach at least 40% within eight years. Discriminatory or retaliatory contractual clauses or orders will be null and void. Employee representatives will be charged with monitoring equality levels and fostering awareness among employees, and will have a positive duty to notify management of any inappropriate behaviour that comes to light. For their part, trade unions and national equality associations will be empowered to launch legal actions in the name of gender equality.
Employers that neglect their obligations under the Bill will be penalised by fines and loss of or temporary exclusion from social security or employment benefits. On the other hand, companies that demonstrate exceptional commitment to advancing equality will be rewarded with a Government award for excellence, which they can display on their promotional materials.
The landmark proposals have unleashed a storm of debate in the press, but they still need the go-ahead from both parliamentary houses before becoming law.
In Denmark, the focus is on mitigating any potential negative impact which enlightened employment policies may be having on small employers. Concerns have been voiced about the high costs associated with maternity leave, and in particular the disproportionately heavy toll they can take on smaller companies. The Ministry of Employment has responded by proposing a new statutory scheme to counterbalance these costs.
Under the proposal, employers would be required to contribute a fixed sum per employee each year – a figure of DKK1,000 (£88) has been mentioned – but would also be entitled to claw back a proportion of the salary paid to employees while they are on maternity leave, up to a cap of DKK142 (£12.50) per working hour. Individual schemes along these lines are already in operation through collective agreements, but if the proposal is approved the scheme will be rolled out on a nationwide basis.
Carolyn Boyle is editor of International Law Office.
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