(18 June 2003)

Subject: UK implementation of employment legislation with regard to sexual orientation
The principle underpinning EU Directive 2000/78/EC(1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is that there shall be no discrimination whatsoever on the grounds of sexual orientation unless, in very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement.

The UK Government is proposing to use the following text to implement the articles of the above Directive referring to the principle of equal treatment in employment of people with differing sexual orientations:

Exception for genuine occupational requirement (Regulation 7 (3))

* the employment is for purposes of an organised religion;

* the employer applies a requirement related to sexual orientation-

* so as to comply with the doctrines of the religion, or

* because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and

either-

* the person to whom that requirement is applied does not meet it, or

* the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

In the opinion of the Commission, is this a valid and correct interpretation of the term "genuine and determining occupational requirement"?

In the opinion of the Commission, does this not put the onus upon the employee to defend their sexual orientation in tribunal, rather than upon the employer to defend their decision not to employ on the basis of sexual orientation?

E-2150/03EN
Answer given by Mrs Diamantopoulou
on behalf of the Commission
(28 July 2003)

The Commission is following closely the draft proposals of the Member States for the transposition of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. This Directive must be transposed into national law by 2 December 2003. The Commission is paying particular attention to the way in which Member States propose to apply the provisions of article 4 of the Directive concerning occupational requirements.

Article 4(1) allows differences of treatment where, "by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate".

Whether or not a particular difference of treatment meets the conditions of Article 4(1) will depend on the nature of the specific post or job in question. In any event, Article 10 of the Directive makes clear that in civil and administrative procedures, when persons, who consider themselves wronged because the principle of equal treatment has not been applied to them, establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

The Commission cannot intervene during the period allowed for transposition. It will, however, take all necessary legal steps, after the date of entry into force of the Directive, to make sure that Member States have complied with their obligations under the Directive.