Guidelines
Promoting effective anti-discrimination
Prof. Marzia Barbera, Prof. Luciana Guaglianone
Legal experts
Professors in the department of labour law at Brescia University
Summary:
1. the enquiry - 1.2 results - 1.2.1. Part one: Information on the general context - 1.2.2. Part two: Critical areas of possible discrimination - 1.2.3. Part three: Social dialogue on anti-discrimination in the banking sector - 1.3 Some remarks on the results of the research.
1. The enquiry
The first stage of the Project comprised an enquiry which investigated the changes followed the adoption of the latest Community and national legislation, but also identifi ed opportunities for action within collective negotiations at different bargaining levels as well as examples of good bargaining and concertation practices. Following the enquiry grid, set up by the experts, the trade union working groups taking part in the Project (FABI, FIBA, ETYK, FES-UGT, FINANSFÖRBUNDET, IBOA, INE-OTOE, UNITE, VER.DI, FTUFS) gathered various data on the national/local context, on laws or collective agreements that have transposed the EU directives, as well as on legal provisions or negotiation practices designed to monitor the various forms of discrimination and to create equality bodies.
The last part necessitated an enquiry of collective negotiations, of good anti-discrimination practices and of diversity strategies.
The results of the enquiry are therefore based on the research done and information collected at local level by the various trade union partners, with reference to their national experience and to company situations which they judged to be significant.
Wherever possible, the experts compared these results with data contained in the literature available on different national situations. This made it possible to understand the level of knowledge of the social partners as regards the extent of the various forms of discrimination and the anti-discrimination legislation implemented at EU and national levels.
It was also possible to measure subjective perceptions of discrimination and the level of awareness of the extent and the structural nature of the various forms of discrimination.
One of the goals of the research was to carry out the enquiry on these factors since accurate information is the basis for effective action in fighting discrimination.
The answers expected, ranged from those needing previous evaluation to those requiring direct knowledge of company practices and contractual provisions. Furthermore, partners were asked to examine in detail individual points in this part.
The results arrived at through the completion of the enquiry grid did not fully meet the original objective, in particular, the answers which should have helped to fully understand the negotiation strategies adopted in anti-discrimination.
The enquiry grid is composed by three parts:
Part I : Information on the general context
This section of the questionnaire is designed to reconstruct the preexisting legal situation, giving special consideration to the grounds of discrimination covered by law; to identify transposition procedures and to describe the legal situation following the introduction of the directives; to measure the effective implementation of the various laws on discrimination in both the public and private sectors; to evaluate the innovations introduced into national regulations following the wider application of anti-discrimination protection; to report on the tools for monitoring discrimination as well as the existence and roles of equality bodies.
Part II : Critical areas of possible discrimination
This section of the grid is oriented to the collection of specific information on the banking sector and, particularly, to the recollection of data on the critical areas of possible discrimination and to the impact of anti-discrimination legislation on HR management policies.
Part III : Social dialogue on anti-discrimination protection in the banking sector
This section of the grid steers to the collection of information on the role played by social dialogue in combating discrimination and to the identification of good practices.
I.2 Results
I.2.1. Part I : information on the general context
The information provided by the trade union organisations involved in the project, in response to the questions formulated in the first part of the questionnaire (regarding the legislative framework before and after the adoption of the Community directives, the monitoring tools to identify discrimination and the setting up of equality bodies) were compared with, and supplemented by Community Reports on measures to combat discrimination, drafted for the European Network of Legal Experts in the non discrimination field of the European Commission (the only country, among those taking part in the enquiry, for which no data are available at Community level is Bulgaria). These reports, which were compiled in 2007 and which focused on the implementation status of directives 2000/43/EC and 2000/78/EC in each country of the European Union, are at present the most up-to-date and reliable source of information.
I.1 The anti-discrimination protection before the adoption of the EU directives
I.1 ITALY
According to FABI and FIBA, the discrimination factors that were covered by Italian law before the Community directives were gender, race and ethnic origin, religion and personal beliefs, and disability.
Although in the case of this last factor anti-discrimination legislation cannot in reality be said to have been in place until 2003, since there was only one law for the integration of the disabled (law No 104/1992 for the care, social integration and rights of handicapped persons), the other risk factors indicated by the trade union had in fact already been
tackled by Italian law before 2003.
Sex equality in the workplace was promoted through major pieces of legislation such as law No 903/1977 on equal treatment of men and women in the workplace and law No 125/1991 on positive action to achieve equality between men and women in the workplace. The law against discrimination on the grounds of race, ethnic origin and religion was passed in Italy in 1998 (parliamentary decree No 286/1998 regulating immigration and the condition of foreigners in Italy). To this we must add the reference to the Italian Constitution which recognises equal dignity and equality under the law without distinctions on grounds of sex, race, language, religion, political opinions, and personal or social conditions (art. 3) and the Workers' Statute. Under the Workers' Statute of 1970 it was illegal, even before the enactment of the Directives, to dismiss or discriminate a worker in the assignment of duties, in transfers, in disciplinary proceedings, or let him/her otherwise suffer harm, for political, religious, racial and linguistic reasons or on the ground of gender (art. 15).
I.1 CYPRUS
According to the ETYK the only factor covered by anti-discrimination
legislation before the transposition of the directives was disability.
However, the Community Report on the implementation of the
directives of 2001 shows that even before 2000 discrimination on the
ground of disability was prohibited by law No 127/2000, which was
subsequently amended in 2004 by law No 57/2004 in order to comply
with the Equality Directive.
Furthermore, the Cypriot Constitution contains a general anti-discrimination
provision which corresponds to Article 14 of the European
Convention on Human Rights. Article 28(2) of the Cypriot Constitution
guarantees the enjoyment of economic, social and cultural rights
by all persons without any discrimination and provides that every person
shall enjoy all the rights and liberties provided for in the Constitution
without any direct or indirect discrimination against any person
on the grounds of: community; race; religion; language; sex; political
or other conviction; national or social descent; birth; colour; wealth;
social class; or any ground whatsoever, unless the Constitution itself
provides otherwise1.
I.1 SPAIN
Before the transposition of the Community directives anti-discrimination
legislation existed in Spain, according to the FES UGT, related
to the following factors: gender, race and ethnic origin, religion and
personal beliefs, disability, sexual orientation and age.
Numerous discrimination factors are covered by the country's Constitution.
Article 14 of the Constitution proclaims the general principle
of equality and non-discrimination: "Spaniards are equal before the law
and may not in any way be discriminated against on the grounds of
birth, race, gender, religion, opinion or any other condition or personal
or social circumstance."
Disability, age and sexual orientation are not expressly included in this
article but case-law tends to include them as "any other condition or
personal or social circumstance". Instead, as regards legislation, the
Community Report shows that, before the transposition of the directives,
there existed Organic Law No 7/1980 on Religious Freedom
which proclaims the principle of non-discrimination, establishing that
"religious beliefs shall not constitute a reason for inequality or discrimination
before the law.
Religious reasons may not be a ground for preventing anyone from
performing any work, activity, responsibility or public office" (art.1.2).
Law No 14/1982 on the Social Integration of the Disabled is confined
to promoting the care and integration of disabled persons, but is not
anti-discriminatory in nature.
Sex equality in the workplace was covered by the Workers' Statute of
1980, which prohibits discrimination in pay (art. 28, amended in 2002)
and more generally, in employment and working conditions (art. 17).
To this we must add different pieces of legislation that were adopted
to promote gender equality, such as law No 3/1989 on measures to
promote equal treatment of women in the workplace, the Law on
Paternity and Maternity Leave (1995) and law No 39/1999 to promote
the reconciliation of family life and working time for women2.
I.1 DENMARK
FINANSFÖRBUNDET has stated that the following risk factors were
covered by anti-discrimination legislation: gender, race and ethnic origin,
religion and personal beliefs and sexual orientation.
There are no anti-discrimination clauses in the Danish constitution but
a number of different pieces of legislation have served this purpose, as
the Community Report confirms: "In the 1960s and 1970s, equal rights
for women and men however, came into focus: legislation in order to
prohibit sex discrimination in the labour market was enacted, and this
legislation was enforced with the support of the traditionally strong
Danish labour unions" (see for example the 1976 Equal Pay Act which
sought to reduce the difference in the level of pay between men and
women). As for the other discrimination factors since 1996 the Act
on the Prohibition of Differential Treatment in the Labour Market has
covered direct and indirect discrimination on grounds of race, colour,
national or ethnic origin, sexual orientation or religion3.
I.1 IRELAND
The answers provided in the questionnaire suggest that in Ireland all
discrimination factors indicated in the question (excluding multiple
and associated discrimination) were covered by anti-discrimination legislation
before the transposition of the Community directives.
In fact Ireland, even before 2004, not only had specific legislation on
gender discrimination (including the Anti-Discrimination Pay Act of
1974 and the Maternity Protection Act of 1994) - two acts which
made up the cornerstones of the anti-discrimination system in Ireland:
the Employment Equality Act 1998 and the Equal Status Act 2000. As
the Community Report on the status of enactment of the directives
of 2000 notes: "These enactments expanded the scope of non-discrimination
legislation quite considerably on two fronts.
Firstly, the Equal Status Act dealt with non-discrimination in the context
of the provision of goods and services, secondly both Acts prohibited
discrimination on nine grounds: gender, race, religion, disability,
age, marital status, family status, sexual orientation and membership of
the Traveller community"4.
The Irish legislature has therefore prohibited other risk factors than
those generally considered by anti-discrimination legislation: marital
status, family status and membership of the Traveller community.
I.1 GREECE
According to the answers provided in the questionnaire, the discrimination
factors covered by anti-discrimination legislation before the
transposition of the Community directives were race and ethnic origin,
religion and personal beliefs, as well as disability. In realty this answer
does not completely match the information found in the Community
Report on the implementation status of Community directives in
Greece5.
The risk factors covered by Greek law, before the transposition of
the latest directives, appear to be gender, race and ethnic origin. Indeed
"Greek labour law consists of numerous statutes which seek to
combat discrimination in employment, mainly on the grounds of sex
and racial or ethnic origin. For example, law N. 1414/1984 on the implementation
of the principle of sex equality in employment relations
restricts discrimination, though it applies only to persons who work in
the private sector.
There are also statutes which outline a protective framework within
which employers are obliged to abide by the protective provisions
and eliminate discriminatory practices, such as dismissal of a pregnant
woman, or related to the race or ethnic origin of the employee"6.
The other factors indicated in the answer are covered in Greece's
Constitution, which protects the inviolability of religious freedom and
specifically contains some provisions on disabled persons. Again with
reference to disability, the quota law No 2643/1998 is the main legislation
on the employment of disabled persons, but it is not an antidiscrimination
law.
I.1 GERMANY
In the questionnaire gender and disability are listed as risk factors covered
by German anti-discrimination legislation before the transposition
of the Community directives. In connection with this reference is
made to the German Civil Code which prohibited all forms of unequal
treatment and discrimination against employees due to their sex in
the labour market (the provision has, however, recently been annulled
through the introduction of the new General Equal Treatment Act which
bans discrimination on various grounds, including sex, in civil law, in
accordance with the EU Directive 2000/78/EC), the Federal Act on the
Promotion of Women of 1994, the Federal Act on the Equal Opportunities
between Men and Women of 2001 and, as regards disability,
law No 5/2002 on Promoting the Equality of the Disabled. However, it
must be added that the equality provision of the German Constitution
(art. 3), which provides special protection against discrimination on the
grounds of sex, parentage, race, language, homeland and origin, faith,
or religious or political opinions and disability, almost certainly goes
beyond these factors as well as being the main legal source dealing
with equal treatment and anti-discrimination in the area of employment.
Indeed the Industrial Relations Act establishes that the employer and
the works council are obliged to ensure that all employees are treated
equally irrespective of their descent, religion, nationality, origin, political
or trade union activities or opinions, gender or sexual orientation.
I.1 UNITED KINGDOM
The answers provided to the questionnaire indicate that the discrimination
factors already covered by anti-discrimination legislation in the
United Kingdom before the transposition of Community directives
were: gender, race and ethnic origin, disability and other (not specified).
Indeed since the Seventies the United Kingdom, which does not have
a written constitution, has introduced a sizeable amount of anti-discrimination
legislation in relation to some risk factors: the Equal Pay Act
(1970), the Sex Discrimination Act (1975) and the Sex Discrimination
Regulations (1999), covering gender, the Race Relations Act (1976),
prohibiting direct and indirect discrimination on the grounds of ethnicity,
colour, race, national origin and nationality, and the Disability
Discrimination Act (1995).
I.1 BULGARIA
According to the Bulgarian trade union, before the transposition of the
Community directives there was anti-discrimination legislation covering
all the discrimination factors indicated in the questionnaire. As explained
in the introduction, the lack of reports and Community studies
on this country makes it difficult to verify the fullness and accuracy of
the answers provided.
The few data gathered indicate that equal rights and the principle of
non-discrimination are enshrined in the Bulgarian Constitution (1991)
and that the labour law code (1986, amended 2001) prohibits all forms
of discrimination, privileges and limitations based on nationality, origin,
gender and race (art. 243 of the Code amended in 2001 introduced
the principle of equal pay for women and men).
I.2 Transposition methods
I.2 ITALY
According to FABI the transposition of Community directives took
place through a general act covering all the grounds of discrimination.
In realty the European anti-discrimination directive was transposed in
Italy through a set of laws covering specific risk factors.
EU Directive 2000/43/EC on equal treatment of people irrespective
of race and ethnic origin was enacted by parliamentary decree No
215/2003, while Directive 2000/78/CE, covering religion and personal
beliefs, disability, age and sexual orientation was enacted by parliamentary
decree No 216/2003. Gender as a discrimination factor
has received particular attention from the Italian legislature, which
has passed various laws on sexual equality in the workplace (law No
903/1977 on equal treatment of men and women in the workplace, law
No 125/1991 on positive action, parliamentary decree No 145/2005
enacting directive 2002/73/EC, parliamentary decree No 198/2006,
also known as the Equal Opportunities Code, parliamentary decree
No 196/2007 transposing directive 2004/113/EC on equal access to,
and supply of goods and services).
I.2 CYPRUS
The Community directives were transposed into Cypriot law through
specific acts covering each single discrimination factor. Cyprus has
enacted four laws which entered into force on the date of its accession
to the EU (01/05/2005): the law amending a previously enacted
law on disability (the Disability Law No 57/2004), the law transposing
the employment directive (the Equal Treatment in Employment and
Occupation Law No 58/2004), the law transposing the race directive
(the Equal Treatment Racial or Ethnic Origin Law No 59/2004) and
the law appointing the Ombudsman as the Equality Body empowered
to investigate complaints of discrimination (law No 42/ 2004 on the
Combating of Racial and Some Other Forms of Discrimination).
I.2 SPAIN
According to the Spanish trade union the transposition of Community
directives took place through a general act covering all the grounds of
discrimination. Directives 2000/43 and 2000/78 were jointly transposed
in Law 62/2003 of 30 December on fiscal, administrative and social
measures. This law, and therefore the transposition of both directives,
came into force on 1 January 2004. However, there are other laws
covering individual discrimination factors: in the field of disability, law
No 51/2003 of 2 December 2003 on Equal Opportunities, Non discrimination
and Universal Access for Persons with Disability which made
progress in the direction pointed by Directive 2000/78; in the field of
gender, the Organic Law 3/2007 on effective equality between women
and men, which promotes the principle of equal treatment and equal
opportunities in all spheres of political, social and economic life.
I.2 DENMARK
The Community directives were enacted in Denmark through a general
act covering all the grounds of discrimination. The EU directives of
2000 were enacted in 2004, through various amendments to the Labour
Market Discrimination Act (Civil Act No 459/1996 on the prohibition
of discrimination in respect of employment and occupation, amended
by Act No 253/2004 and further amended by Act No 1416/2004) which
prohibited additional risk factors that were not previously covered
i.e. age, disability and personal beliefs. Besides the amendments to the
law of 1996 other acts must also be mentioned.
These cover certain individual factors such as the Act on Gender Equality
(2000) promoting equal treatment within the public administration
and in occupational and general activities, and Act No 374/2003 on the
prohibition against unequal treatment due to race and ethnicity (the
Ethnic Equal Treatment Act) covering the non-employment aspects of
the Race Equality Directive, including non-discrimination due to race
and ethnicity in the fields of social protection, access to goods and
services, education and housing.
I.2 IRELAND
The transposition of the Community directives took place in Ireland
through a general act covering all the grounds of discrimination. The
Equality Act 2004 was introduced to amend the other two Acts (the
Employment Equality Act 1998, and the Equal Status Act 2000, which
remain the fundamental law on equality within Ireland) to ensure compliance
with both the Employment Framework Directive and the Race
Directive. The act prohibits discrimination on the grounds of gender,
race, religion, age, disability, sexual orientation, marital status, family
status, and membership of the Traveller community.
I.2 GREECE
According to the answers provided transposition of the Community
directives took place not only through a general act covering all
the grounds of discrimination, but also through specific acts dealing
with each single ground. Directives 2000/78/EC and 2000/43/EC were
enacted through anti-discrimination law No 3304/2005 on the implementation
of the principle of equal treatment regardless of racial or
ethnic origin, religious or other beliefs, disability, age or sexual orientation,
therefore covering all five grounds of the aforementioned Directives.
Greece has paid special attention to gender, transposing the Community
directives on sex equality through specific laws: see, for example,
law No 1414/1984 on the implementation of the principle of sex equality
in employment relations (harmonising with Community Directives
No 75/117 and 76/207), and law No 3488/2006 for the enforcement
of the principle of equal treatment of men and women with regard to
access to employment, in professional training and development, and in
working conditions (incorporating Directive 2002/73/EC).
I.2 GERMANY
The Community directives were transposed into German law through
a general act covering all the grounds of discrimination: they are the
General Law on Equal Treatment 08/2006 which creates a completely
new framework for anti-discrimination law in Germany. The act, covering
labour law, general contract law, and public law is part of a legal
package that amends other existing legal regulations and contains in
addition an act against discrimination in the army i.e. the Law on the
Equal Treatment of Soldiers.
I.2 UNITED KINGDOM
Transposition of Community directives in the United Kingdom did
not occur through one general law, but through specific acts dealing
with each single ground of discrimination. The Gender Recognition Act
(2005) and The Gender Equality Duty (2007) followed previous laws
on the subject of gender (the Sex Discrimination Act 1975 and the Sex
Discrimination Regulations 1999); the Race Relations Act (1976) and
the Disability Discrimination Act (1995) were amended in 2003 and in
2005 respectively.
As regards the discrimination factors which were still not covered by
anti-discrimination law (i.e. religion and personal beliefs, sexual orientation
and age), the need to transpose Directive 2000/78/EC led to
the adoption of the following laws: in 2003 the Employment Equality
(Religion or Belief) Regulations and the Employment Equality (Sexual
Orientation) Regulations, in 2006 the Employment Equality (Age) Regulations.
The Equality Act 2006 has extended protection against discrimination
on the grounds of religion, belief and sexual orientation
to education, housing, provision of goods and services and to the performance
of public functions.
I.2 BULGARIA
According to FTUFS the transposition of Community directives took
place only through a general law, although this law is not indicated by
the trade union organisation. The Law is 86/2003 on the protection
against discrimination (in force since January 2004 and amended in
2006) which is a comprehensive anti-discrimination law covering the
implementation of the equality principle in labour relations, education
and training as well as the protection of consumers' rights. This law
prohibits discrimination on the grounds of sex, race, nationality, ethnic
origin, citizenship, origin, religion or belief, education, opinions, political
affiliation, personal or public status, disability, age, sexual orientation,
marital status and property status.
I.3 Grounds covered by transposition
I.3 ITALY
According to the answer provided to the questionnaire all the discrimination
factors indicated have been covered through the transposition
of Community directives, including multiple and associated discrimination.
The grounds of discrimination prohibited by Italian statutes coincide
with those covered by the Directives (gender, race and ethnic origin,
religion and personal beliefs, disability, sexual orientation and age) with
the relevant addendum of discrimination on the ground of nationality.
"Discrimination on ground of nationality is explicitly excluded from
the scope of application of the Decrees but it is presently still covered
by the 1998 Immigration Act, which provides similar protection to that
offered by the Directives and which has been expressly kept in force
by the Decrees7
I.3 CYPRUS
As regards the answer on the risk factors covered by the transposition
of the Community directives, ETYK has indicated the following ones:
gender, race and ethnic origin, religion and personal beliefs, disability,
sexual orientation and age.
The Combating of Racial and Some Other Forms of Discrimination
(Commissioner) Law that appoints the Commissioner for Administration
(or the Ombudsman), however, deals also with other risk factors,
such as "community", "language", and "colour" (law No 42/2004).
I.3 SPAIN
Gender, race and ethnic origin, religion and personal beliefs, disability,
sexual orientation and age (including multiple and associated discrimination)
are the risk factors covered by Spanish legislation following
the enactment of Community directives. Law 62/2003 transposing
Directives 2000/43/EC and 2000/78/EC expressly mentions the grounds
of racial or ethnic origin, religion or belief, disability, age or sexual
orientation (art. 27). As the national Report underlines8, the Organic
Law 3/2007 on effective equality of women and men, which covers the
factor of gender, is the only law which refers to multiple discrimination.
Art. 20 contains a first reference to multiple discrimination providing
that "the public authorities shall, in the preparation of studies and statistics,
devise and introduce the necessary mechanisms and indicators
to show the incidence of other variables whose recurrence generates
situations of multiple discrimination in the various spheres of action."
There is no mention in Spanish legislation of discrimination based on
assumed characteristics, nor of discrimination based on association
with persons with particular characteristics.
Both the Workers' Statute and law No 62/2003, transposing Directives
2000/43 and 2000/78 speak only of personal characteristics and
not of "assumed characteristics". But discrimination on the grounds
of "assumed characteristics" may be regarded as implicitly included in
these laws9.
I.3 DENMARK
The answer provided to the questionnaire indicates that all the discrimination
factors listed were dealt with by the transposition of the
Community directives (gender, race and ethnic origin, religion and personal
beliefs, disability, sexual orientation and age), to which others
are added, although these are not specified. The Labour Market Discrimination
Act goes beyond the cover provided by the Community
directives considering also colour, nationality and political opinion as
risk factors.
I.3 IRELAND
IBOA indicated the following discrimination factors as being covered
by the transposition of the Community directives: gender, race and
ethnic origin, religion and personal beliefs, disability, sexual orientation
and age. As previously underlined, another three risk factors have been
prohibited by Irish law: marital status, family status and membership of
the "Traveller Community". Both the Employment Equality Act and the
Equal Status Act prohibit discrimination by association.
I.3 GREECE
The following discrimination factors are covered by the transposition
of the Community directives: gender, race and ethnic origin, religion
and personal beliefs, disability, sexual orientation and age. Gender is
covered by specific laws, while law No 3304/2005 on the application
of the principle of equal treatment regardless of racial or ethnic origin,
religious or other beliefs, disability, age or sexual orientation, implementing
the Directives 2000/43/EC and 2000/78/EC, covers all five
grounds of the Directives. However, Greek law has also covered other
risk factors such as nationality and language.
I.3 GERMANY
According to the German trade union all the discrimination factors indicated
have been covered through transposition of Community directives,
including multiple and associated discrimination. Indeed the general
aim of the General Law on Equal Treatment 08/2006 is defined as
combating discrimination based on the grounds of race, ethnic origin,
sex, religion or philosophical belief, disability, age and sexual identity. As
regards the aspect of multiple and associated discrimination, while "discrimination
by association is not explicitly covered, a provision deals
with multiple discrimination on various grounds. It is stated that any
such discrimination has to be justified independently"10.
I.3 UNITED KINGDOM
UNITE replied that all the discrimination factors indicated have been
covered through transposition of Community directives. The grounds
of discrimination that are explicitly prohibited in national law are: age,
race, colour, nationality, ethnic origin, national origin, sex, gender reassignment,
marital status, disability, sexual orientation, religion or belief.
National law goes beyond the sphere of application of Community
anti-discrimination legislation by considering further risk factors.
I.3 BULGARIA
On the basis of the answers to the questionnaire it can be surmised
that all the discrimination factors indicated are covered by Bulgarian
anti-discrimination legislation following the transposition of Community
directives, including additional factors (not specified) and multiple
/ associated discrimination. Law No 86/2003 on the protection against
discrimination (amended in 2006) prohibits "any direct or indirect
discrimination on the grounds of sex, race, nationality, ethnic origin,
citizenship, origin, religion or belief, education, opinions, political affiliation,
personal or public status, disability, age, sexual orientation, marital
status, property status, or on any other grounds, established by the
law, or by international treaties which the Republic of Bulgaria has
ratified" (art. 4). The Law on Employment Promotion of 2006 provides
that: "while enjoying the rights and discharging the duties under
this law, direct or indirect discrimination, privileges or restrictions on
the grounds of nationality, origin, sex, sexual orientation, race, colour
of the skin, age, political and religious convictions, affiliation to trade
unions and other non-governmental organisations and movements,
marital, social and economic status, and physical and mental disabilities
shall be forbidden" (art. 2).
I.4 Fields of application
I.4 ITALY
The Italian anti-discrimination law applies both in the public and private
sectors. As the Community Report on the status of enactment of
the directives points out, "the Decrees in general apply to all sectors
of public and private employment, although some restrictions apply
to specific fields. In some cases restrictions can be extensive, as in the
case of the armed forces, but are not technically conceived as exclusions
from the material scope of application of the new legislation
transposing the Directives, but as a specification that the new act does
not prejudice the validity of other legislation presently in force"11. The
key provision (art. 3) on material scope of the decrees transposing the
Directives expressly establishes that the prohibition of discrimination
apply to all persons in the public and private sectors with reference
to the following fields: access to employment, to self-employment or
to occupation; employment and working conditions, including promotions,
dismissals and pay; membership of, and involvement in, an organisation
of workers or employers, etc.
The decree transposing Directive 43/2000 added the following fields:
social protection, including social security, healthcare, education, access
to goods and services, including housing.
I.4 CYPRUS
The Cypriot anti-discrimination legislation covers both the public and
private sectors. The national legislation transposing the Race and Framework
directives applies to all sectors of public and private employment
and occupation, including contract work, self-employment, holding
statutory office, with the exception of military service.
The scope of law No 58(I)/2004 (transposing the Employment Directive)
covers conditions for access to employment, to self-employment
or to occupation, including selection criteria, recruitment conditions
and promotion; access to vocational guidance and training, including
practical work experience; employment and working conditions, including
dismissals and pay; membership 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.
I.4 SPAIN
In Spain the anti-discrimination legislation is applied both in the public
and private sectors.
Art. 27.2 of law No 62/2003 provides that the measures for the application
of the principle of equal treatment under it apply to every
person, both in the public and the private sector.
"For the private sector, the prohibition on discrimination and violating
workers' fundamental rights is mainly addressed to the employer
but can also be made applicable to managers, and presumably to coworkers
or the labour union"12.
I.4 DENMARK
The Danish anti-discrimination legislation applies to both the public
and private sectors, although the answer suggests that there exist fields
that are not covered (not specified).
The Act on the Prohibition of Differential Treatment on the Labour
Market from 1996 prohibits both direct and indirect discrimination in
the public and private sectors.
I.4 IRELAND
According to IBOA Irish anti-discrimination legislation applies both in
the public and private sectors. The major distinction between the Employment
Equality Act and the Equal Status Act relates to their scope:
the Equal Status Act 2000-2004 prohibits discrimination in the provision
of goods and services whereas The Employment Equality Act
1998-2004 prohibits discrimination in the sphere of employment. This
does not distinguish between public and private sector employees and
relates to access to employment, conditions of employment, training
or experience for or relation to employment, promotion or re-grading
or classification of posts.
This Act also covers vocational training, employment advertisements
and agencies and agency workers.
I.4 GREECE
Greek anti-discrimination law applies to both the public and private
sectors. Anti-discrimination law No 3304/2005 which fully transposes
the two Directives into Greek law protects all persons both in the public
and private sectors and covers the fields of access to employment
and occupation, vocational training and education, social protection,
including social security and healthcare, education, as well as access to
goods and services, including housing.
I.4 GERMANY
German anti-discrimination legislation covers both the public and private
sectors, but with some areas not covered (not specified). The
General Law on Equal Treatment covers labour law, general contract
law and public law.
As for the world of work, the general principle of equal treatment of
employees applies to all sectors of employment (public and private),
on all grounds, and in all matters of labour law (access to employment
and career advancement, conditions of work, membership in associations,
etc.).
I.4 UNITED KINGDOM
According to UNITE, the UK anti-discrimination legislation applies to
all sectors of employment, both public and private. It also applies to
some, but possibly not all, forms of self employment.
I.4 BULGARIA
FTUFS states that anti-discrimination legislation applies both to the
public and private sectors.
I.5 Specific tools used to monitor situations of discrimination
I.5 ITALY
When asked to specify which tools are used to identify situations of
discrimination, FABI answered statistics differentiated by risk factor
and studies, conducted also by public bodies, as regards monitoring of
the market and labour policies; collective agreements are monitored
instead solely through studies.
The trade union also underlines the fact that union representatives
have information rights contained in law No 125/1991, in parliamentary
decree 198/2006 and, for example, in the banking sector's 2005
collective agreement.
I.5 CYPRUS
From the answers provided to the questionnaire it can be surmised
that the labour market, labour policies, collective agreements and HR
management policies are all monitored in the same way i.e. through
statistics differentiated by discrimination factor, indicators, studies, including
those conducted by public bodies. ETYK also underlines that
various parties are involved in monitoring e.g. NGOs, parliamentary
committees, the Department of Labour and the National Machinery
for Women's Equal Rights.
I.5 SPAIN
When asked to specify which tools are used to monitor discrimination
situations, FES-UGT indicated the use of statistics differentiated
by risk factor, indicators and studies conducted by public bodies to
monitor the labour market and labour policies. Collective agreements,
on the other hand, are monitored through studies and other tools.
HR management policies are monitored through the use of statistics
differentiated by discrimination factor and indicators.
The trade union also underlines that information rights are guaranteed
by various laws, such as the Workers' Statute.
I.5 DENMARK
The Danish trade union mentioned only studies as a tool used to monitor
the labour market, labour policies, collective agreements and HR
management policies. As for information rights, the trade union points
out that "there is an obligation to inform and consult the works council,
but there are no specific rights on discrimination issues".
I.5 IRELAND
IBOA indicated the following tools to monitor the market, labour policies
and HR management policies: statistics differentiated by discrimination
factor and studies, including those conducted by public bodies.
Collective agreements are monitored exclusively through studies.
I.5 GREECE
According to INE-OTOE's answer, various monitoring tools are used
depending on the field in question. In the case of collective agreements
and HR management policies only studies are used; for labour policies
both studies and statistics differentiated by discrimination factor are
used. In the case of the labour market, in addition to the above monitoring
tools indicators are also used.
INE-OTOE specifies further that union representatives have information
and consultation rights under various laws (e.g. on hygiene and
safety at work).
I.5 GERMANY
According to VER.DI, the same tools i.e. statistics are used to monitor
the labour market, labour policies, HR management policies and collective
agreements to identify discrimination situations differentiated
by risk factor and studies, including those conducted by public bodies.
I.5 UNITED KINGDOM
In the United Kingdom the monitoring tools, used to identify discrimination
situations, vary according to the field of investigation.
All the tools indicated in the questionnaire are used to monitor the
labour market and labour policies; only indicators and studies are used
for collective agreements, while HR management policies are monitored
not only through the use of indicators but also statistics differentiated
by risk factor. UNITE points out that the use of statistics focuses
on such aspects as "makeup of workplace, remuneration, percentage of
women, disabled or ethnic minorities in senior company positions".
I.5 BULGARIA
According to FTUFS, the tools used to identify discrimination situations
are always the same, whatever the field of investigation. Statistics
differentiated by risk factor and studies, also conducted by public
bodies, are used to monitor the labour market and labour policies,
collective agreements and HR management policies.
I.6 Equality institutions
I.6 ITALY
FABI replied that equality bodies on gender and race have been set up
at national level. As regards the first discrimination factor, a number
of equality and equal opportunity institutions (reformed under parliamentary
decree No 196/2000) exist in Italy. Coordination of such institutions
is the responsibility of the Premier and it is also transferred
to the Minister of Equal Opportunities.
A central role is performed by the National Equality Committee, a
body made up of representatives from government, social partners
and civil society, which can be consulted and make recommendations
on the implementation of equality objectives in the labour field, including
awareness-raising, promoting positive action and settling collective
bargaining disputes.
Alongside this committee there is a network of equality councillors,
made up of regional and provincial representatives: these persons are
appointed by the Ministry of Labour to promote equal opportunity
policies and anti-discrimination laws.
The National Agency against Racial Discrimination (UNAR) is an equality
body that has been created to deal with race and ethnic origin. It
is not an autonomous body, since it is established as a branch of the
Department for Rights and Equal Opportunities, previously dealing
exclusively with gender discrimination.
The agency's responsibilities include providing independent assistance
to victims of discrimination in pursuing their complaints, carrying out
independent enquiries on discriminations, promoting the adoption of
specific measures aimed at eliminating or compensating the disadvantages
related to a certain race or ethnic origin, issuing of opinions and
proposing legislative reforms concerning racial and ethnic discrimination,
issuing recommendations on matters related to racial and ethnic
discrimination and the dissemination of information concerning the
rules on equal treatment between persons irrespective of racial or
ethnic origin.
I.6 CYPRUS
In Cyprus there exist equality bodies at national level for all discrimination
factors: the Department of Labour is responsible for issues of
employment and disabled persons; the National Machinery for Women's
Equal Rights and the Commissioner for Administration (Ombudsman).
"The Ombudsman is an independent body designated as the national
specialised Equality Body empowered to cover all grounds. Its mandate
includes the power to combat direct racial and indirect racial discrimination
as well as discrimination forbidden by law and generally discrimination
on the grounds of race, community, language, colour, religion,
political or other beliefs and national or ethnic origin.
Its mandate covers all five grounds of the two antidiscrimination Directives
but extends even further to include gender, nationality, community
as well as rights and freedoms contained in the Cyprus Constitution
and in international conventions ratified by the Republic of
Cyprus. The Equality Body has the mandate to draft independent reports,
carry out enquirys and issue recommendations"13.
I.6 SPAIN
The Spanish banking trade union points out that there exist equality
bodies for all discrimination factors, set up at national level.
The Council for the promotion of equal treatment of all persons
without discrimination on the grounds of racial or ethnic origin, established
by law No 62/2003; the National Disability Council recreated
under law No 51/2003 on equal opportunities, non-discrimination and
universal accessibility for disabled people, which is an inter-ministerial
collegiate advisory body that institutionalises the collaboration of
associations of disabled people and their families with national government;
the Women's Institute, an organisation in charge of fostering
conditions leading to social equality between genders and the participation
of women across all fields of society, including employment and
work issues.
I.6 DENMARK
In Denmark there are equality bodies, set up at national level for some
discrimination factors (the Danish Board for Ethnic Equality, the Gender
Equality Board).
In reality these bodies have recently been merged into one body - the
Common Complaints Board for Equal Treatment. This body has the
power to deal with all grounds of discrimination, including race, ethnicity,
nationality, gender, disability, religion, sexual orientation, age, social
origin, and political orientation.
I.6 IRELAND
According to the information provided in the questionnaire, in Ireland
there exist equality bodies for all discrimination factors, at both national
level set up by the legislation, and at more local level set up by
regional or local authorities. The Employment Equality Act 1998-2004
established two national institutions with enforcement functions under
the Equality legislation.
These bodies cover all nine of the protected grounds, and all the nondiscrimination
provisions of the Equality Acts.
The first of these two bodies is the Equality Authority, an independent
body which is required under the legislation to work towards the elimination
of discrimination, to promote equality of opportunity, to provide
information to the public on a number of matters and to review
various legislative enactments.
The second body established under the Employment Equality Act is
the Equality Tribunal, a quasi-judicial body established for the purpose
of investigating complaints.
The national Report14 mentions other bodies, i.e. the Irish Human Rights
Commission and a body which operates in the equality field with
reference to one specific factor i.e. disability: The National Disability
Authority promotes and helps secure, on behalf of the State, the rights
of people with disabilities.
I.6 GREECE
As stated in the questionnaire, in Greece there exist both equality bodies
operating at national level covering all the discrimination factors,
and bodies that are responsible for specific factors (gender).
As for the former, the new non-discrimination law No 3304/2005 entrusts
three specialised administrative bodies with the promotion of
the principle of equal treatment..
These bodies are: the Ombudsman - an Independent Authority, which
drafts reports and investigates complaints of violation of the principle
(in any field; not only in occupation and employment); the Equal Treatment
Committee, supervised by the Minister of Justice with responsibilities
covering all fields with the exception of the public sector (but it
does not cover employment and occupation); the Labour Inspectorate,
a government body which is active only in the private sector and in the
field of employment and occupation.
In addition there are bodies which operate solely with respect to gender
equality: they are the General Secretariat for Gender Equality, which
is a government institution, and the Research Centre for Gender
Equality, founded in 1994 by the General Secretariat for Equality.
I.6 GERMANY
In Germany there exist both equality bodies which operate at national
level covering all risk factors, and bodies that deal with specific discriminatory
grounds, set up at both national and local levels (neither of
which are identified). The anti-discrimination law establishes a Federal
Anti-discrimination Agency, created in August 2006 in Berlin, which has
the task of supporting persons to protect their rights against discrimination
on all grounds regulated by the AGG law (race, ethnic origin,
sex, religion, belief, disability, age, sexual orientation).
The agency "has the task of supporting persons to protect their rights
against discrimination, especially to inform them about the legal means
against discrimination, to arrange legal advice provided by other agencies,
to mediate between the parties, to provide information to the
public in general, to take action for the prevention of discrimination,
produce scientific studies, and - every four years - a report on the
issue of discrimination, together with the Commissioners dealing with
related matters"15 .
There are in addition various agencies concerned with some of the
tasks, most notably the federal and regional Commissioners for Integration/
Foreigners and the Commissioner for National Minorities and
Immigrants of German Ethnicity, for Disabled Persons, or the German
Institute for Human Rights at the federal and regional levels which do
advisory work for the government and other public bodies, publish
(extensive) reports and advise victims of discrimination to some extent.
I.6 UNITED KINGDOM
In the United Kingdom there exist both equality bodies that operate
at national and local levels with reference to all discrimination factors,
and bodies which have narrower responsibilities.
At present, there are three UK equality commissions, the Commission
for Racial Equality, the Disability Rights Commission and the Equal
Opportunities Commission, which has responsibility for gender discrimination.
All three commissions can support complainants in legal proceedings,
have some enforcement powers of their own, and also have powers to
promote and encourage respect for equality of opportunity through
research, public comments and other methods.
"All three by 2009 will be merged with the new Commission for Equality
and Human Rights (CEHR), which will have enforcement and promotional
powers across all the equality grounds in the UK.
There is a separate Equality Commission for N. Ireland, which will remain
separate and has similar functions as the new CEHR"16.
I.6 BULGARIA
The Bulgarian trade union has indicated the existence of one equality
body, operating at national level and responsible for all discrimination
factors.
The body in question is the Commission for the protection against
discrimination, an independent specialised state body for prevention
of discrimination, protection against discrimination and ensuring equal
opportunities, set up by law No 86/2003 on the protection against
discrimination.
This body has the power to: identify violations of this and other laws
which regulate equality of treatment, impose the sanctions envisaged,
provide independent assistance to the victims of discrimination, conduct
independent research related to discrimination, issue proposals
and recommendations, etc..
I.7 Equality bodies set up under a collective agreement
The majority of trade unions (ETYK, FINANSFÖRBUNDET, IBOA,
VER.DI, FTUFS, UNITE) have stated that there are no equality bodies
set up under collective agreements. The Spanish banking trade union
FES UGT, however, replied that some such bodies exist, set up at local
level and for some discrimination factors.
The Greek banking trade union, INE-OTOE, also pointed out the
presence of two bodies, set up under collective agreements, which
operate in the banking sector and cover the gender factor: the sectorbased
Committee of Equality and the Committee of Social Dialogue.
FIBA (Italy) indicated that a collective agreement set up the National
Commission on Equal Opportunities, made up of representatives from
trade unions and employers' associations, which operates at national
level and deals with the factor of gender.
2.2. Part II: Critical areas of possible discrimination
The questions included in this part were designed to investigate the
possible existence of discrimination in the workplace and the discriminatory
effects that rules, considered normal in the work environment,
and managerial conduct might have in relation to the various phases
of the establishment, continuation and termination of an employment
relationship. The answers which were required were partly based on
making evaluations and partly on a knowledge of statistics, legal or
contractual provisions or, alternatively, of company practices.
The knowledge of data relating to discrimination cannot be underestimated;
this comes clearly from a study by the European Commission:
"Data are needed for the purposes of policy development and implementation
both at the national and European levels.
Decisions can only be as good as the information on which they are based,
which means that decision makers need as much information as they can
get in order to arrive at the right decisions.
Equality considerations are relevant for all policy areas, including employment,
education, healthcare and provision of services and goods.
Data are indispensable for identifying and overcoming inequalities in these
fields of life, and can help to identify the best course of action to take (...) It
will be hard to arrive at the right decisions if they have to be made in the
dark or be arrived at through trial and error.
Making the right analyses and decisions right at the start helps to better
secure the rights of the individuals and groups concerned, being in addition
cost-effective. "17.
These considerations are valid not only for politicians, but also for
trade unions and management. The results of the enquiry show that
the ability to collect and study data concerning situations of possible
discrimination is still limited and that much work needs to be done to
improve this area of trade union action.
II.1 Access to work and working conditions
When asked whether the presence of discrimination factors led to
greater difficulties concerning access to work and working conditions
or not, most of the partners replied affirmatively, with the exception
of ETYK, FINANSFÖRBUNDET and FTUS. The discrimination factors
mentioned vary significantly, from UNITE and IBOA , which indicate
almost all the prohibited factors, to FABI and INE-OTOE, which indicates
gender, disability and age, while VER.DI indicates only age.
Moreover, it is not clear which types of contract produce this discrimination
because, when asked if a higher percentage of prohibited
factors was to be found within groups on short-term or part-time
contracts, the answers varied enormously: FABI, which had indicated
gender among the factors which limit access to work, also stated that
women were the most likely to have part-time contracts; this is not
the case with INE-OTOE, which did not state that part-time jobs were
mostly done by women.
Indeed, what research is available shows that women make up the main
category of part-time worker in the countries of European Union.
II.2 Professional position, wages, various employment-related
benefits and professional career opportunities
The answers about possible differences referring to professional position,
pay, various employment-related benefits (e.g. child allowances)
and professional career opportunities in the case of those belonging
to one of the groups protected by the discrimination laws, are worth
closer scrutiny because of the lack of uniformity in the answers given
by the partners and, in some cases, because of the incongruity and
inconsistency of the data provided.
Even in this area it appears that there are no forms of discrimination
in the situations of Cyprus, Denmark and Bulgaria for any of the risk
factors. This contradicts other information provided by Cyprus, which
shows gender-dependent salary differences, and by Bulgaria, which
describes the negative effects of maternity leave on women's careers
and direct discrimination against women relating to pregnancy and
maternity.
Regarding Denmark, that gender is not mentioned, may be due to the
fact that, as highlighted in the General Report on developments in EU gender
equality law, drafted by the Commission's network of legal experts
in the fields of gender equality, in some countries, such as Denmark,
gender equality is not a controversial issue and hence does not play
an important role in public debate18. Even if this is true for gender, it
does not apply to the other risk factors. A further example is the data
collected by the Eurobarometer which shows that 62% of those interviewed
believe that it is still difficult for homosexuals to reveal their
sexual orientation in the workplace.
The transposition process in Denmark of the Race Equality and the
Framework Directives was greatly affected by political debate events.
The formation of expert Committees in 2001 in order to prepare
proposals for the most expedient implementation in Danish law of
the Race Equality and the Framework Directives was highly welcomed.
These two Committees halted a broader discussion in society on the
transposition of the Race and the Framework Directive, because all
the key actors in the field participated in the Committees, and consequently
did not want to inter-act in public discussions until the Committees
had concluded their work19.
Regarding Bulgaria, studies and research on data comparable to those
used by the enquiry grid are not at present available, at least at Community
level. This was made clear from contacts with the DG Employment
and Social Affairs Unit.
The answers from the partners of the other countries are quite consistent
in indicating gender as a key discrimination factor in the areas
under scrutiny (professional position, pay, various employment-related
benefits, professional careers).
While this fact reflects widespread forms of gender discrimination in
the labour market and in the labour organisations of all Member coun-
tries, it is also possible that the consistency in the answers is due to
the fact that this kind of discrimination has been combated by Community
and national legislation longest.
Awareness of this form of discrimination and action by trade unions,
women's organisations and equality bodies is more consolidated.
II.3 Return to work after maternity
Nonetheless, it is worth noting that all partners indicate the phase of
return to work after maternity as one of the phases with the highest
risk of discrimination. It is very common for women to be given other
duties and to face unequal treatment in relation to salaries, career prospects,
promotion and training. However, FES UGT, IBOA, UNITE also
indicate the other risk factors as grounds of discrimination.
II.4 Vocational training and termination of the employment
relationship (individual and collective dismissals)
Finally, as regards discrimination observed in vocational training and in
the phase marking termination of the employment relationship (individual
and collective dismissals), in some cases the answers are consistent
with data in the previous sections; in others, important differences
can be noted relating to the different risk factors, although the
reasons for these differences are not stated. Also in this case, Cyprus,
Bulgaria and Denmark indicate that there are no forms of discrimination
on the prohibited grounds.
In the answers of the other partners important differences can be
noted with respect to the first set of questions and between one risk
factor and another.
FABI and FIBA, which had identified gender, disability and age as the
discrimination factors which affect access to work and working conditions,
now indicates the same factors in the section on training, but not
in those relative to termination of employment relations.
FES UGT, which had indicated race and ethnic origin, disability, age and
associated discrimination as discrimination factors which affect access
to work and working conditions, now chooses only associated discrimination
from the discrimination factors in the section on training, no
discrimination factor in the section on individual dismissals and only
age in the section on collective dismissals.
IBOA, which had indicated all the risk factors as discrimination factors
affecting access to work and working conditions, now excludes reli
gion and personal beliefs from the discrimination factors in the section
on training, and reports only age from the discrimination factors on
collective dismissals.
INE-OTOE, which had pointed out gender, disability and age as discrimination
factors affecting access to work and working conditions,
reports only gender from the discrimination factors in the section on
training and no discrimination factor on termination of the employment.
UNITE, which had indicated all the risk factors as discrimination
factors affecting access to work and working conditions, now replies in
the same way in the section relative to training, excluding religion and
personal beliefs, indicates all the risk factors from the discrimination
factors in the section on collective dismissals.
VER.DI, which had identified only age as a discrimination factor affecting
access to work and working conditions, highlights only gender
discrimination from the discrimination factors on professional training
and indicates no discrimination factor in the sections relative to the
termination of the employment relationship.
II.5 Positive action in favour of women; changes in HR management
policies
In general, in reply to the questions concerning positive action in favour
of women in the area of professional training or collective dismissals,
the partners gave a negative or "don't know" answer, although, in
some cases, legal provisions do exist.
Finally, with the exception of Denmark and Greece, all the partners
indicate changes in HR management policies following the entry into
force of anti-discrimination legislation, providing various examples to
back this up.
2.3. Part III. Social dialogue on anti-discrimination protection
in the banking sector
Since social dialogue is the main theme of the Project, an analytical
method was chosen to present the results of part three of the enquiry,
in order to better understand the present situation.
III.1 Rating the degree of knowledge of anti-discrimination
legislation
All the trade union organisations, except INE-OTOE, believe that the
degree of knowledge of anti-discrimination legislation possessed by
managers and trade union leaders varies between adequate and good.
However, this result is partly contradicted by missing or incoherent
answers to the previous questions. The difference between the two
results suggests an erroneous understanding of the range of anti-discrimination
legislation.
The knowledge of this legislation on the part of the representative
bodies present in the workplace is considered, at most, satisfactory,
except in the cases of ETYK and INE-OTOE. On the whole, HR managers
seem to have a better understanding of the matter and, again,
the verdicts given, which vary between satisfactory and good, do not
include ETYK and INE-OTOE. A better, albeit negative, distribution of
results concerns the degree of knowledge of the workers, where the
level fluctuates between satisfactory and unsatisfactory, but with mainly
negative verdicts (ETYK; FES-UGT; IBOA; INE-OTOE; VER.DI; FTUFS).
The difference in the level of knowledge of anti-discrimination legislation
between trade union representatives and workers immediately
suggests that the trade union organisations themselves do not deem
it important to disseminate knowledge on anti-discrimination legislation.
The record for the lowest degree of knowledge seems to be that indicated
by ETYK and INE-OTOE which indicate insufficient knowledge
on the part of all the interested parties, except for senior managers
and trade unionists.
III.2 Specific education/training on anti-discrimination legislation
It appears that training sessions are held on anti-discrimination legislation
in most of the banking institutes of the countries involved in the
enquiry. Mostly, and with the same frequency, the answers indicate this
is thanks to both the trade union organisations and the workers representatives
within the institutes (i.e. ETYK, FES-UGT, IBOA, UNITE and
VER.DI). Judging from the answers given, HR managers also seem to be
quite keen on this kind of training (ETYK, FES-UGT, IBOA, UNITE).
However, the workers show no interest in training in this area. Nevertheless,
on the whole, the question produces a sizeable number
of "don't know" answers: this number is understandably higher when
asked to evaluate the training policies of HR managers. Linking the data
in this question with the previous one, one could, however, conclude
that the methods used during training have not had the desired effect
of providing a sound knowledge of anti-discrimination legislation.
III.3 Information and awareness-raising campaigns
No information or awareness-raising campaigns have been run in the
banking institutes where ETYK, FINANSFÖRBUNDET, VER.DI, FTUFS
operate. The other trade union organisations state that campaigns
have been run at different levels.
FABI communicates that in 2007 it promoted a campaign calling on
the President of the Italian Republic to undertake institutional action
aimed at reducing differences in wages and career opportunities
between men and women. In Greece, in the same period, an awareness-
raising campaign was run to coincide with the European Year for
Equal Opportunities.
The current initiatives in Spain and United Kingdom are more specific
and innovative. The FES-UGT declares that a specific delegate has been
appointed within most of the trade union organisations and the HR
departments to deal with gender and equality issues.
UNITE communicates an interesting initiative; the trade union has
obtained financial aid from government sources to increase the number
of trade union representatives dealing with equality issues.
III.4 Information on workers and working conditions
provided according to discriminatory grounds
In cases where information on workers and working conditions broken
down according to discriminatory grounds is provided, which accounts
for 4 out of 9 unions (FABI; FES-UGT; INE-OTOE; UNITE), gender is
still the main issue. After gender comes age (2 cases out of 4).
However, the leader country in this area is United Kingdom: UNITE
reveals that when information on workers and working conditions is
provided, all discrimination grounds in breach of the two directives are
considered.
III.5 Grievance procedures in cases of discrimination at
company or sectoral level
Grievance procedures arising out of contractual provisions are used in
6 out of 9 cases. Once again, gender - probably as it is the discrimination
ground which has been fought for the longest - is a key issue in all
procedures. As regards the other grounds, there is a lot of difference
between replies from FINANSFÖRBUNDET, IBOA (all the discrimination
grounds mentioned in the two directives are subject to grievance
procedures) and UNITE (only multiple discriminations are excluded),
and answers from other trade union organisations.
Age is still among the discrimination grounds which are not considered,
while disability is mentioned only by ETYK and INE-OTOE, sexual
orientation by ETYK and by FES-UGT; race and ethnic origin as well as
religion and personal beliefs are also mentioned by ETYK.
III.6 Terms and conditions on discrimination stipulated in
collective agreements
This question constitutes one of the focal points of the enquiry; on the
whole the answers were fairly detailed. However, further analysis of
their value will be necessary to discover the real extent and intensity
of social dialogue in the area of anti-discrimination protection.
In all the countries, except in Greece, and perhaps in Bulgaria, terms
dealing with discrimination are stipulated in collective agreements,
mainly at national level, (FABI; FIBA; FES-UGT; IBOA; INE-OTOE; VER.
DI) although in 2 cases (FES-UGT and IBOA) such terms have been
stipulated at both national and company levels. Collective agreements
on anti-discrimination issues have only been reached at national level in
Germany and Denmark (see answers from VER.DI and FINANSFÖRBUNDET).
However, the contents of the provisions of national bargaining agreements
do not seem to be particularly innovative; they merely seem to
reiterate the legal principles regarding anti-discrimination issues (see
answers provided by FABI, FES-UGT and VER.DI). UNITE shows collective
bargaining measures against discrimination.
III.7 Legislation covering specific grounds
The question was designed to investigate the presence and the extent
of specific legal provisions introduced to benefit particular groups or
specific situations. The result shows the presence in all partner countries,
apart from Germany, of such measures in favour of the disabled
(there aren't official data from Bulgaria), but not all the trade union organisations
specify what the actual contents of the provisions are. FABI
and FIBA indicate the presence of two laws in Italy: law No 104/1992
(law dealing with the care, social integration and rights of the handicapped)
and law No 68/1999 (legislation covering the right to work
in favour of the disabled); these provisions introduced, among other, a
mandatory duty to employ in favour of the disabled.
Instead, Spanish law has not introduced any positive action requirement
in favour of the disabled, but such a requirement is included in
the collective bargaining agreement operating in the banking sector (
FES-UGT answer).
As regards positive action, it is present in the legislation of 5 partner
countries out of 9 (no such measures exist in England and Denmark,
whereas the situation in Bulgaria is not known), in Italy it was introduced
by means of law No 125/91 ( answer provided by FABI), whereas
in Cyprus, ETYK says, a number of anti-discrimination laws make its
use lawful.
In Germany their presence seems to be limited to the public sector
and covers both state and regional employees. With reference to the
UK, UNITE point out that no legislation promoting positive action has
been introduced. However, the experts believe that this situation has
changed since the introduction of a recent law regarding the public
sector.
The last answer referred to the presence of measures to reconcile
family life and work; no such measures exist in Cyprus and in Denmark
( answers provided by ETYK and FINANSFÖRBUNDET); such measures
are present in the other partner countries, excepted Bulgaria;
characteristics and areas vary.
The first difference relates to the sources: in Spain collective agreements
have introduced measures to meet this objective, but FES-UGT does
not believe that they are often used. In Italy there is a specific law, law
No 53/2000 (to support maternity and paternity, to protect the right
to care and training, and to reconcile work and family life) ( answer
provided by FABI and FIBA); the situation is diverse in the United Kingdom,
where measures to reconcile family life and work cover not only
leave (for maternity, adoption and family matters), but also the nature
of the work (flexi- and part-time).
III.8 Review of collective bargaining agreements following
the new anti-discrimination legislation
Although the directives explicitly call for a review of bargaining agreements
following the new anti-discrimination legislation, INE-OTOE states
that negotiating bodies within the banking sector in Greece have
not complied until now. Bulgaria and Italy are not aware of procedures
in the sector, while the other partner countries give varying answers.
IBOA reiterates the Community rules, indicates all the bargaining levels
named in the questionnaire, but does not provide any example.
The most interesting cases are those provided by ETYK and UNITE.
In Cyprus, the introduction of anti-discrimination legislation has led
to changes in laws on complementary healthcare provision. Only employees'
wives, and not their husbands, were covered by such provision
before the legal changes; however, since the beginning of 2007, a global
scheme run by the trade union organisations has replaced the previous
system.
Moreover, again referring to details provided by ETYK, recruitment
procedures have also been changed to comply with anti-discrimination
legislation. In Spain, the company level is the area most affected
and some provisions have already been implemented, while others are
still being negotiated, according to FES-UGT. The answers provided by
UNITE concentrate on the role of negotiations, but also introduce the
issue of promoting diversity by employers.
Collective agreements - at both national and company levels - have
been revised to take account of anti-discrimination legislation.
At management level, policies governing equality and protection of diversity
are under examination and, in many cases, discussions on promoting
diversity are on the agenda with the aim of improving company
profits.
Also in Germany agreements are made both at company and national
levels ( VER.DI answers), while FINANSFÖRBUNDET observes that,
unlike the industrial sector, there have been no changes in the banking
sector.
III.9 Bargaining proposals which take account of the new
anti-discrimination legislation
On the whole bargaining policy in the banking sector has been affected
by the introduction of anti-discrimination legislation (negative response
from INE-OTOE, while Bulgaria answers "don't know").
The answers range from those providing very basic information (FABI,
IBOA and ETYK), to those providing full details of bargaining practices.
FES-UGT replies that bargaining is taking place at company level on
the specific issue of gender equality and that this action was promoted
by employer associations in relation to the next collective agreement.
Age discrimination is the main subject of national bargaining practices
in Germany, while UNITE affirms that, at company level, the role played
by trade union organisations in changing and improving legislation is
very strong. As an example UNITE mentions the improvements made
to conditions covering flexible working hours and legal provisions to
reconcile family life and work, as well as company policies in favour of
transgenders.
III.10 Declarations of intent designed to promote anti-discrimination
policies contained in agreements
Declarations of intent designed to promote anti-discrimination policies
are not very frequent in the banking sector (completely absent
in Denmark, Ireland and Greece according to the answers provided
by FINANSFÖRBUNDET, INE-OTOE and IBOA), and, where present,
they are mostly to be found in company-level agreements (for example
in Spain and Germany: replies from FES-UGT, VER.DI).
It is interesting to observe that in Italy and Cyprus, despite there being
differences between agreement levels (in Italy bargaining takes place
at trans-national, national and company level but in Cyprus only at
company level) there appears to be a strong connection between an
increase in anti-discrimination awareness (even if only for gender as
in Cyprus) and the presence of European Works Councils or transnational
bargaining.
Regarding this point, some trade union organisations made statements
which go beyond the basic answer to the question. FIBA points to the
fact that anti-discrimination policies are often associated with the issue
of corporate social responsibility, while UNITE mentions the presence,
in some companies, of unilateral declarations by banking institutes aimed
at guaranteeing equality of treatment and promoting diversity.
III.11 Arrangements to promote anti-discriminatory contractual
policies and management policies
All the trade union organisations in the banking sector promote antidiscriminatory
contractual policies using different tools and at different
bargaining levels (Greece is an exception to this tendency). Action at
national level is taken in all the partner countries, as well as at company
level, everywhere except in Germany. The means used vary from the
preparation of handbooks (Italy, Spain, Denmark, Ireland, United Kingdom
and Germany) to training sessions (Italy, Cyprus, Ireland, United
Kingdom and Germany) to the production of guidelines on the introduction
of good practices (Italy, Spain, Ireland, United Kingdom and
Germany) and the presence of experts in the workplace (Italy, Ireland,
United Kingdom and Germany).
III.12 Role played by workplace representatives in promoting
anti-discriminatory employment contract and management
policies
Except for Ireland, (Greece and Bulgaria do not provide an answer),
workplace representatives play a role in promoting anti-discrimination
policies.
The instruments used comprise the promotion of training sessions
(Italy, United Kingdom and Germany), the production of guidelines on
the introduction of good practices and the use of experts and the setting
up of a network of Equality Representatives (United Kingdom).
III. Some remarks on the results of this part of the research
The results of the research are worth commenting on.
The first observation to make is that the level of knowledge of antidiscrimination
legislation, at both community and national levels,
is still unsatisfactory. Training, specialisation and dissemination
actions are therefore essential.
Of particular interest are the results of the section on measuring the
degree of knowledge and awareness of discrimination in the labour
market and in enterprises.
We have already reported something about the considerable attention
paid to gender - the discrimination factor for which legislation and
collective negotiation date furthest back in time.
Now some thought must be given to the differences and inconsistency
of the answers relative to the other discrimination factors, as well as to
the low degree of knowledge of existing forms of social discrimination
which these answers indicate.
We must ask ourselves if, in some cases, these differences do not express
the perceptions of trade unionists rather than reflecting actual
statistical data on inequalities present in the labour market. However,
even if the former were true, it would be interesting to investigate
how these perceptions were arrived at. For example, we must realize
why FES_UGT maintains that women do not face greater difficulties
regarding access to work in the credit sector, whereas Eurobarometer
research indicates that Spain (and Italy) are the countries where most
people believe that women are disadvantaged both in society and particularly
in the workplace20.
The differences among factors other than gender in the different national
experiences also deserve some thought. Neither research done
on the separate local contexts, nor the perception of discrimination,
measured by the Eurobarometer, indicate major differences among
countries as regards the various forms of discrimination. We must therefore
realize if the research results do not reveal a vast lack of tools
to identify discrimination as well as a lack of information on the subject
(on this point see also the comments on part three of the questionnaire
below)
A study conducted by the European Union reveals the following:
"In many Member States recognition of the "discrimination" theme, in compliance
with European Directives, has not been accompanied by implementation
of indicators allowing them to objectively assess the reality of discrimination.
Thus, data for these indicators are sparse at best, and identified
by proxy in the absence of an exact, shared definition of grounds of discrimination.
Most of the time, data are unavailable. The major and recurring
absence is that of a coherent system for measuring progress in the fight
against discrimination based on common rules, on the basis of which these
data may be collected and used"21.
According to the experts, several factors explain this absence of shared
rules at European level for measuring progress:
(a) the implementation of the actions required by the Directives is still recent,
and not all of the statistics have been adapted to correctly account for them.
In addition, the Directives do not formally call for reporting and the creation
of a series of indicators.
(b) The fight against discrimination in the Member States reflects an uneven
translation of Directives into law, particularly in terms of independence, authority
and powers devolved to the Independent Authorities.
It is thus advisable that the social partners act to put pressure on the
equality bodies to provide efficient tools to measure discrimination
and, at the same time, develop independent systems to find all forms
of discrimination, which will result in further action (reporting, awareness-
raising and negotiations). Another reason for the differences in
the answers provided in this part of the questionnaire could be a poor
legal definition of the discrimination factors in the different national
contexts, except for those countries with a longer-established tradition
of combating discrimination. According to research conducted at
European level, how the groups affected by discrimination are categorised
varies from one country to the next.
"Such categorization is sometimes absent, and when it does exist, its relevance
occasionally seems off the mark. Thus, we are confronted with the
following:
Grounds of race and ethnic origin: categorization for these grounds
thus corresponds to different realities depending on the country.
The sociological reference concept ("race" or "ethnicity") is sometimes not
translated. In certain cases, proxy variables are substituted: e.g. country of
birth, parents' country of birth and "citizenship."
Sometimes the concept of "ethnicity and/or nationality" is used and there is
confusion between nationality, religion and geographic origin, which leads one
to think that categories will have to be revised in a number of countries.
In countries like the UK and Ireland, a more precise categorization is offered,
and rules have been established on identifying individuals which avoids people
being classified without their agreement.
Grounds of disability: depending on the country, the definition has either
a medical or social orientation, leading to various definitions of the group of
people who are discriminated against. People in certain countries may selfdeclare
their disability, while in others a disability may only be certified by
official acknowledgement.
Grounds of sexual orientation: are the most poorly defined and the
least monitored in every Member State.
Grounds based on age: there are objective and systematically collected
categories, but questions remain concerning age groups for which monitoring
should be carried out with an eye to possible employment discrimination.
Depending on the country, the "youth" and "aging worker" groups are not
always based on the same range of ages. Moreover, the data relative to
these indicators are hardly ever analyzed in the Member States for purposes
of monitoring discrimination"22.
One of the main conclusions that can be drawn from our research,
and this was fully confirmed by the Cyprus seminar, is that the answers
to the questionnaire generally reveal a mistaken perception of
the scope of the protection provided by anti-discrimination legislation.
Furthermore, although anti-discrimination training courses exist in all
countries, the forms used do not appear appropriate to generate detailed
knowledge of anti-discrimination legislation. These facts probably
affect the entire anti-discriminatory collective bargaining process and
the attention paid to discrimination in the drafting of contractual clauses,
both at national and company levels, is not sufficient to counteract
them.
The antidote to the limitations reported above are, as we have seen
from the positive experience of the UK, awareness-raising strategies,
training courses based on specific learning techniques, as well as the
introduction of equality representatives, who are responsible for
devising and producing anti-discrimination policies and actions.
Both the research and the meetings conducted in Rome and Cyprus
by the research group have provided some guidelines for negotiating
equality at work.
These were the fruit of the exchange of knowledge and dialogue among
the various project partners, as well as the specific experience of some
of the union organisations involved (above all in the case of UNITE,
which may also be considered an example of best practice).
The guidelines indicate some methods to identify and measure possible
discrimination and provide a checklist for establishing discrimination-
aware consultation and negotiation practices.
They also provide practical instructions on avoiding or eliminating potentially
discriminatory contents which may be unintentionally hidden
within collective agreements, in the light of the principles and innovative
measures foreseen by the new anti-discrimination legislation23.
___________________________________________________________________________________
1 Trimikliniotis N., Report on measures to combat discrimination - Cyprus Country Report
drafted for the European Network of Legal Experts in the non discrimination field of the
European Commission.
2 Chacon L., Report on measures to combat discrimination - Spain Country Report drafted
for the European Network of Legal Experts in the non discrimination field of the European
Commission.
3 Hansen N.E., Danish Country Report on measures to combat discrimination - Executive
Summary, p. 1
4 Quinlivan Shivaun, Ireland Country Report on measures to combat discrimination - Executive
Summary, p. 2
5 Ktistakis Yannis, Report on measures to combat discrimination - Greece Country Report
drafted for the European Network of Legal Experts in the non discrimination field of the
European Commission.
6 Ktistakis Yannis, Greek Country Report on measures to combat discrimination - Executive
Summary, p. 1-2.
7 Simoni A., Report on measures to combat discrimination - Italy Country Report drafted
for the European Network of Legal Experts in the non discrimination field of the European
Commission, p. 24
8 Chacon L., Report on measures to combat discrimination, cit., p. 15
9 Ibidem.
10 Mahlmann Matthias, Germany Country Report on measures to combat discrimination
Executive Summary, p. 3
11 Simoni A., Report on measures to combat discrimination, cit., p. 18
12 Chacon L., Report on measures to combat discrimination, cit., p. 24
13 Trimikliniotis N., Cyprus Country Report on measures to combat discrimination, cit., p. 6
14 Quinlivan Shivaun, Ireland Country Report on measures to combat discrimination,
cit., p. 7.
15 Mahlmann Matthias, Germany Country Report on measures to combat discrimination, cit.,
16 O'Cinneide C., United Kingdom Country Report on measures to combat discrimination,
cit, p. 7
17 European Commission, European handbook on equality data, 2006, p.44.
18 General Report on developments in EU gender equality law, drafted by the Commission's
network of legal experts in the field of gender equality, 2007, p.31.
19 See. N.E. Hansen, Denmark, Discrimination based on Racial or Ethnic Origin, Report drafted
for the European Network of Legal Experts in the non-discrimination field of the European
Commission, 2004, p. 2.
20 Cf. European Commission, Special Eurobarometer, Discrimination in the European
Union, 2007, p. 75 seq.
21 European Commission, How to measure progress in combating discrimination and promoting
equality, 2008, p. 4 seq
22 Ibidem
23 The guidelines were constructed relying, inter alia, on the toolkits on equality developed
by the UNITE and AMICUS trade unions, and the Close the Gap Partnership,
as well as the European Foundation for the Improvement of Living and Working Conditions.