Employment and pensions: Extension of Directive on burden of proof to the UK

The European Council has adopted the Directive on the extension to the United Kingdom of Directive 97/80/EEC on the burden of proof in cases of discrimination based on sex. The Directive was adopted last December under the Protocol on Social Policy annexed to the Maastricht Treaty but did not apply to the UK by virtue of its opt out of the Social Chapter.

Following the UK Government's decision to sign up to the Protocol, which is to be incorporated into the Amsterdam Treaty which is in the process of being ratified, the 'extension Directive' will be adopted as soon as possible. The UK will have to transpose its provisions into national legislation within the three year period originally granted to the other Member States.

Directive 97/80 aims to ensure that measures taken by the Member States to implement the principle of equal treatment are made effective. The principle of equal treatment means that there must be no discrimination whatsoever based on sex, either directly or indirectly. Indirect discrimination exists where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex and is not objectively justified. Member States must take necessary measures to ensure that when persons who consider themselves victims of gender discrimination before a court or other competent judicial authority, bring actions to enforce their rights the onus is on the respondent to prove that there has been no breach of the principle of equal treatment.