Final Report Summary - PIEDIUEL (Practical impact of EU equality directives in Italian and UK employment law: a comparative analysis)
Research conducted in PIEDIUEL has identified shortcomings and good practices in the enforcement of non-discrimination law, and considered the potential for good practices to be transplanted from Great Britain to Italy and vice versa. PIDIUEL has, within United-Kingdom employment law, focused on British legislation, which does not apply in Northern Ireland due to special legacies in that part of the United Kingdom. The Northern Irish specific situation has not been researched, as the transferability to other European Union (EU) legal orders seems limited.
As a first step, PIEDIUEL has analysed whether implementation of the EU non-discrimination directives in Great Britain and Italy comply with the EU law. It has found that national implementation is, for the most part, formally correct, partly after some changes in legislation in response to Commission challenges and political discussion in the countries.
As a second step, PIEDIUEL has analysed how the directives' implementation have had an impact in Italy and Great Britain. This analysis has not been confined to the positive law, but has also extended to evaluation of experts interviews and secondary analysis of quantitative data. Secondary data analysis was based on the reports on non-discrimination law published by the Italian Ufficio Nazionale Antidiscriminazioni razziali (UNAR) - national office against racial discrimination) and the British Equality and Human Rights Commission (EHRC). In addition, quantitative data concerning the amount of case law in both countries have been evaluated for Great Britain using the Great Britain Employment and Employment Appeal Tribunal Statistics 2010 - 2011, and for Italy by analysis of the labour court cases.
Primary data has been obtained through expert interviews, which have been conducted with practitioners and academics involved in the practical application of non-discrimination law (equality bodies, trade union activists, practicing lawyers and legal academics).
The EHRC and UNAR reports suggest that number of court claims raised in cases of discrimination is higher in Great Britain than in Italy. Furthermore, interviews with practicing lawyers in Great Britain and Italy indicate that British lawyers are more experienced in dealing with non-discrimination law. Accordingly, best practices concerning judicial enforcement of non-discrimination law originate from Great Britain. These include requiring employers to complete questionnaires in order to justify different treatment of employees or applicants in order to avoid a finding of discrimination, the regular reconstruction of the history of the employment relationship to understand the employer's attitude towards the supposedly discriminated employee and the use of statistical data before courts as a matter of routine. At the level of legislation, Great Britain has implemented the directives' provision on the burden of proof, which is referred to as 'reversal of the burden of proof' in academic writing: if the employee can substantiate facts that support a finding of discrimination, it is for the employer to provide evidence that discrimination has not taken place (now: Equality Act 2010, section 136). Following infringement proceedings by the European Commission, Italian law has too been brought into line with Article 8 Directive 2000/43/EC and Article 10 Directive 2000/78/EC (section 8-sexties and 8-septies law no 101 of 6 June 2008, Official Gazette No 132 of 7 June 2008). Accordingly, on substantiation of facts supporting a finding of discrimination, it is for the employer to proof the contrary.
In addition, the EHRCs powers are more encompassing than that of the UNAR: EHRC's ambit cover all grounds of discrimination combined in Directives 2000/43, 2000/78 and 2006/54, while the UNAR is empowered to support victims of racial discrimination only. This also enables the ECHR to tackle multiple discrimination more efficiently than the UNAR.
In addition, UNAR has no enforcement powers (article 7 Decree 9 July 2003, n. 215). It cannot collect evidence of discrimination, but may only receive victims' complaints by telephone or via the internet. The situation is different in the field of gender equality, where the equal opportunity advisor has been granted administrative powers to enforce non-discrimination law from May 2006 (decree 11 of April 2006, n 198). Because of this rather recent legacy, this body was not included in the investigation. The EHRC, by contrast, has the power to investigate and apply for an injunction in case of unlawful act (article 24 Equality Act 2006) or to provide legal assistance to employees (article 28 Equality Act 2006). It can also carry out a more efficient activity concerning multiple discriminations because the ECHR can deal with all grounds of discrimination.
Trade unions in Great Britain are certainly more experienced in addressing discrimination in the workplace. They can support employees. They mediate between employees and employer in cases of suspected discrimination, but they do not possess powers useful in tackling discrimination. Before engaging in collective action (including strikes), trade unions must comply with challenging legal rules about ballots. They do not have formal enforcement powers beyond negotiation and collective action.
After having been reluctant to engage in non-discrimination matters for many years, Italian trade unions have recently made non-discrimination the subject of collective bargaining. As a result, several national collective agreements now include non-discrimination rules. Overall, in Italy trade unions have more scope to act. First, they can take recourse to collective action, including strike, without any legal obligation of balloting their members. Secondly, they can choose to initiate court proceedings against any employer infringing discrimination law under article 28 of the law of 20 May 1970 no 300. Any court ruling resulting from such a representative trade union action creates enforceable rights for the employees affected by the discriminatory act. More recently, a similar power has been introduced in favour of the equal opportunity advisor, in the field of sex discrimination (section 37 decree no 198 of 11 April 2006). Finally, Italian trade unions can complement court proceedings with collective action.
According to the opinions of the experts interviewed, these provisions could be used as models for introducing representative non-discrimination claims in the United Kingdom. Conversely, the good practices reported above could be transplanted from the UK to Italy in order to enhance the practical impact of non-discrimination law.
Thus, the project results will be relevant for Italian and Great Britain academics, activists and legal practitioners but also for EU policy makers. Future EU provisions and directives on non-discrimination law should take into consideration the real impact of the provision introduced into the law systems of Member States.
As a first step, PIEDIUEL has analysed whether implementation of the EU non-discrimination directives in Great Britain and Italy comply with the EU law. It has found that national implementation is, for the most part, formally correct, partly after some changes in legislation in response to Commission challenges and political discussion in the countries.
As a second step, PIEDIUEL has analysed how the directives' implementation have had an impact in Italy and Great Britain. This analysis has not been confined to the positive law, but has also extended to evaluation of experts interviews and secondary analysis of quantitative data. Secondary data analysis was based on the reports on non-discrimination law published by the Italian Ufficio Nazionale Antidiscriminazioni razziali (UNAR) - national office against racial discrimination) and the British Equality and Human Rights Commission (EHRC). In addition, quantitative data concerning the amount of case law in both countries have been evaluated for Great Britain using the Great Britain Employment and Employment Appeal Tribunal Statistics 2010 - 2011, and for Italy by analysis of the labour court cases.
Primary data has been obtained through expert interviews, which have been conducted with practitioners and academics involved in the practical application of non-discrimination law (equality bodies, trade union activists, practicing lawyers and legal academics).
The EHRC and UNAR reports suggest that number of court claims raised in cases of discrimination is higher in Great Britain than in Italy. Furthermore, interviews with practicing lawyers in Great Britain and Italy indicate that British lawyers are more experienced in dealing with non-discrimination law. Accordingly, best practices concerning judicial enforcement of non-discrimination law originate from Great Britain. These include requiring employers to complete questionnaires in order to justify different treatment of employees or applicants in order to avoid a finding of discrimination, the regular reconstruction of the history of the employment relationship to understand the employer's attitude towards the supposedly discriminated employee and the use of statistical data before courts as a matter of routine. At the level of legislation, Great Britain has implemented the directives' provision on the burden of proof, which is referred to as 'reversal of the burden of proof' in academic writing: if the employee can substantiate facts that support a finding of discrimination, it is for the employer to provide evidence that discrimination has not taken place (now: Equality Act 2010, section 136). Following infringement proceedings by the European Commission, Italian law has too been brought into line with Article 8 Directive 2000/43/EC and Article 10 Directive 2000/78/EC (section 8-sexties and 8-septies law no 101 of 6 June 2008, Official Gazette No 132 of 7 June 2008). Accordingly, on substantiation of facts supporting a finding of discrimination, it is for the employer to proof the contrary.
In addition, the EHRCs powers are more encompassing than that of the UNAR: EHRC's ambit cover all grounds of discrimination combined in Directives 2000/43, 2000/78 and 2006/54, while the UNAR is empowered to support victims of racial discrimination only. This also enables the ECHR to tackle multiple discrimination more efficiently than the UNAR.
In addition, UNAR has no enforcement powers (article 7 Decree 9 July 2003, n. 215). It cannot collect evidence of discrimination, but may only receive victims' complaints by telephone or via the internet. The situation is different in the field of gender equality, where the equal opportunity advisor has been granted administrative powers to enforce non-discrimination law from May 2006 (decree 11 of April 2006, n 198). Because of this rather recent legacy, this body was not included in the investigation. The EHRC, by contrast, has the power to investigate and apply for an injunction in case of unlawful act (article 24 Equality Act 2006) or to provide legal assistance to employees (article 28 Equality Act 2006). It can also carry out a more efficient activity concerning multiple discriminations because the ECHR can deal with all grounds of discrimination.
Trade unions in Great Britain are certainly more experienced in addressing discrimination in the workplace. They can support employees. They mediate between employees and employer in cases of suspected discrimination, but they do not possess powers useful in tackling discrimination. Before engaging in collective action (including strikes), trade unions must comply with challenging legal rules about ballots. They do not have formal enforcement powers beyond negotiation and collective action.
After having been reluctant to engage in non-discrimination matters for many years, Italian trade unions have recently made non-discrimination the subject of collective bargaining. As a result, several national collective agreements now include non-discrimination rules. Overall, in Italy trade unions have more scope to act. First, they can take recourse to collective action, including strike, without any legal obligation of balloting their members. Secondly, they can choose to initiate court proceedings against any employer infringing discrimination law under article 28 of the law of 20 May 1970 no 300. Any court ruling resulting from such a representative trade union action creates enforceable rights for the employees affected by the discriminatory act. More recently, a similar power has been introduced in favour of the equal opportunity advisor, in the field of sex discrimination (section 37 decree no 198 of 11 April 2006). Finally, Italian trade unions can complement court proceedings with collective action.
According to the opinions of the experts interviewed, these provisions could be used as models for introducing representative non-discrimination claims in the United Kingdom. Conversely, the good practices reported above could be transplanted from the UK to Italy in order to enhance the practical impact of non-discrimination law.
Thus, the project results will be relevant for Italian and Great Britain academics, activists and legal practitioners but also for EU policy makers. Future EU provisions and directives on non-discrimination law should take into consideration the real impact of the provision introduced into the law systems of Member States.