Self Employed - Equal Treatment

ACT

Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010  on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC.

SUMMARY

Background

A report was done on the old Directive 86/613 and the European Commission concluded that its implementation was 'not entirely satisfactory when measured against the prime objective of the Directive, which was a general improvement in the status of assisting spouses'.  16% of Europe's employment is by self-employed persons and around 11% of self employed workers rely on the help of spouses and partners who work on an informal basis in small family businesses. The dependency on the self employed partner means that these people are at high risk of poverty in the event of divorce, bankruptcy or their partner's death. In December 2007 the Council asked the Commission to revise the old Directive to ensure the rights related to motherhood and fatherhood of the self employed. 

EU Level Social Protection for the Self Employed

The new EU Directive 2010/41, replacing the old Directive 86/613, is aimed at creating better social protection for self-employed workers and their partners, including for the first time the right to maternity leave.  On its introduction Vice-President of the European Commission Viviane Reding stated:

"With the entry into force of this new law, Europe takes an important step forward in terms of increasing social protection and providing equal economic and social rights for self-employed men and women, and their partners,"

The main elements of the new Directive are:

1) Principle of Equal Treatment (Article 4)

Article 4 states that "there shall be no discrimination whatsoever on grounds of sex in the public or private sectors, either directly or indirectly, for instance in relation to the establishment, equipment or extension of a business or the launching or extension of any other form of self-employed activity". This includes harassment or sexual harassment or instructions to discriminate on the grounds of sex.

2) Positive Action (Article 5)

Countries may adopt measures to ensure full equality in practice between men and woman (within the meaning of Article 157(4) of the Treaty).

3) Equal Establishment of a Company (Article 6)

Countries shall ensure that the conditions for establishing a company between spouses or life partners will not be more restrictive than the conditions for two other persons.

4) Social Protection (Article 7)

Where a system of social protection for self employed exists, each country must ensure that spouses or life partners can benefit. They will have the right to social security coverage (such as pensions) on an equal basis as formal self-employed workers. This will help to provide a stronger social safety net and to stop women from falling into poverty.

5) Maternity Benefits (Article 8)

For the first time at the EU level female self employed workers may be granted a maternity leave of at least 14 weeks. The duration of maternity leave that is granted, as recognized by national law, must be similar to the duration for employees in place at Union level. If the Union duration is modified then the Commission will report whether the same modification should extend to the self employed.

6) Temporary Replacement Services (Article 9)

Female self-employed workers will have access to any existing services supplying temporary replacements or to any existing national social services. The Member States may provide that access to those services is an alternative to or a part of the allowance referred to the new Directive.

7) Defense of Rights (Article 9)

For the enforcement of the rights under the new directive; judicial or administrative proceedings (and potentially conciliation procedures) are available to all persons who feel they have sustained loss or damage as a result of a failure to apply the principle of equal treatment.  Even after the relationship in which the discrimination is alleged to have occurred has ended.

8) Compensation (Article 10)

No compensation claims shall be limited by the fixing of an upper limit.  Countries will also have to ensure there are sufficient procedures in place to allow the real and effective compensation or reparation for the loss or damage sustained by a person as a result of discrimination on grounds of sex.

9) Equality Bodies (Article 11)

Each country shall ensure there is a national organization responsible for the promotion, analysis, monitoring and support of equal treatment under this Directive.  In the UK it will most likely be the Equality and Human Rights Commission.

10) Level of Protection (Article 14)

This Directive establishes a minimum standard but countries are allowed to create rules which are more favourable to the protection of the principle of equal treatment between men and women.

IMPLEMENTATION

This Directive entered into force on 4 August 2010 and must be implemented by each country by 5 August 2012. However if justified, the Member States may have an additional period of two years until 5 August 2014 in order to comply with Article 7  (Social protection), and in order to comply with Article 8 (Maternity benefits).

Reviewing the Directive

Article 15 states that each country shall communicate all information concerning the application of this Directive to the Commission by 5 August 2015, the Commission will then draw up a report by 5 August 2016 to submit to the Parliament and the Council.  Where appropriate, the report will be accompanied by proposals for amending this Directive.