Gender Equality at Work: Report 

This Report gives a snapshot of the implementation of Directive 2002/73/EC, which introduced many new requirements into EU law on the equal treatment of men and women. These included measures on access to employment, vocational training and promotion as well as requirements regulating the conditions that employees work under.

Background

The equal treatment of men and women has been a part of EU law since its foundation. Active measures to identify, prevent and prosecute discrimination in the workplace were undefined in the legal systems of many Member States however. Directive 2002/73/EC therefore set out to clarify and strengthen existing legislation, while introducing new legal obligations.

Directive 2002/73/EC

Directive 2002/73/EC entered into force on 5 October 2002. It was notable for the following features:

equality between men and women actively into account when formulating laws.
• The broadened scope of anti-discrimination provisions: In particular by prohibiting discrimination in the conditions governing access to self-employment and membership of labour associations.
• Explicitly defined forms of discrimination: This Directive clarified the concept of discrimination by defining the terms direct and indirect discrimination, harassment, sexual harassment and instructions to discriminate. The Directive also defined unfavourable treatment of pregnant women or women on maternity leave as discrimination.
• Provision for positive action (positive discrimination): Positive action measures include education and training, in particular for women who have given birth and are returning to the labour market. It also includes encouragement for the underrepresented sex to apply for certain jobs.
• Requirement of Member States to set up statutory equality bodies.

Aim of the Report

As required by Article 2(2) of the Directive, the Report was produced by the Commission on the basis of information provided by Member States, in particular a questionnaire on the Directive’s application prepared by the Commission and sent to all Member States in January 2009. The aim of the Report is to analyse how the main legislative features of Directive 2002/73/EC have been implemented in the Member States.

Transposition

On the final date for transposition, nine Member States (AT, BE, DE, DK, ES, EL, FI, LU and NL) were deemed to have not transposed the requirements of the Directive adequately. Infringement procedures for non-transposition were therefore initiated against those Member States.

Moreover, after analysing the way that legislation had been transposed, the Commission opened 22 infringement cases against the same number of Member States. Following complaints from members of the public, the number of infringement proceedings was increased to 25.

The Commission has stated that the high number of infringement procedures may be explained by the wide scope and relative complexity of the legislation. Despite the number of cases which remain open, the Commission reports that most Member States have made remarkable progress in implementing Directive 2002/73/EC.

Gender Mainstreaming

The gender mainstreaming objective has been met in a number of different ways: some Member States given equality for men and women the status of a legal principle (DK, ES, FI, IT, PL, PT and SE); others have adopted strategic programmes (e.g. BG, CZ, EL, FI, LT, LV, PT, SE and SI). Austria has adopted guidelines for implementing gender mainstreaming, while the Czech Republic, Denmark and Portugal have created inter-ministerial bodies (CZ, DE and PT) or gender focal points in ministries and other authorities (Bulgaria and Czech Republic). Some Member States (such as CZ, DK, EE, ES, LU and UK) have introduced an obligation to conduct an ex ante assessment of the consequences of envisaged legislation or policies on gender equality.

Broadened Scope

A number of Member States have failed to include self-employment and membership of and involvement in workers' or employers' organisations among the areas covered by the prohibition on discrimination. The Commission has therefore requested that Member States put in place or amend legislation in order to implement those provisions correctly.

Definition of Harassment

The Commission has noted that the transposition of these provisions has not gone entirely smoothly. One issue that came up frequently during monitoring of the Directive's implementation was that some national definitions of discrimination, and particularly of indirect discrimination, were narrower than the Directive‘s definitions. Furthermore, some Member States made the mistake of confining protection to relations between workers and their superiors, thus excluding co-workers or other third parties. Over time the Commission has reported progress in infringement procedures, and some Member States have corrected their definitions of these forms of discrimination.

Positive Action

In this area, too, the situation varies widely among the Member States. While some have not made use of this possibility (such as CY, LU and LV), legislation in many explicitly allows for it (such as AT, BE, CZ, DE, DK, EE, EL, ES, FR, IT, MT, PT, RO, SE, SI and SK). Some Member States have adopted positive action at national level in specific areas (for example, it is compulsory in the federal public sector in Belgium; in Denmark it takes the form of quotas in the civil service at federal and Land level; in Italy and the Netherlands there are positive action plans in the civil service; and in Malta the taxes on women returning to the labour market are lower). In several Member States (AT, ES and FR) positive action is the subject of collective bargaining. In Spain the authorities are required to provide for positive measures to redress inequality. In Finland, companies' equality plans refer to positive action, but in practice such cases are rare.

Judicial/Administrative Proceedings

Under Article 6(1) of the Directive, Member States are expected to ensure that judicial or administrative proceedings can be initiated by all persons who consider they have suffered discrimination. In a few Member States it was unclear whether that obligation also applied after the labour relationship had ended, as required by the Directive.

Equality Bodies

In some Member States such bodies have existed for a long time, be it in the form of ombudsmen or commissions. In most Member States, however, they were established as a result of the adoption of the Directive. Although the equality bodies were set up to promote gender equality, the Commission believes that awareness of their work in society is not always satisfactory and points to the relatively small number of requests for assistance received in some Member States as evidence. The Commission has decided to launch a study relating to equality bodies that will explore issues such as their independence, accessibility, visibility and performance.