Prepare to fight

The
forthcoming changes to employment legislation may provide a rich source for
litigation. Preparation is the key to coping successfully with these changes,
says Sarah Johnson

In
the last census, 0.7 per cent of the population gave their religion as Jedi
Knight. Some might see refusing such a devotee time off to go to a Star Wars
convention as discriminatory under the forthcoming Employment Equality
(Religion or Belief) Regulations 2003 (RBR). However, employers can take heart
as tribunals will probably take a pragmatic approach and be unsympathetic to
claims based on belief in The Force. Other cases will be less straightforward.

Aimed
at protecting employees against direct discrimination, indirect discrimination,
harassment and victimisation on the grounds of sexual orientation, religion or
belief, the Employment Equality (Sexual Orientation) Regulations 2003 (SOR)
comes into force on 1 December this year; the RBR the following day. These
regulations also provide protection after the employment has ended. The
regulations have been introduced to implement European Council Directive
2000/78/EC.

Current
position

It
is not unlawful to discriminate on the basis of sexual orientation, provided
that the discrimination is not gender-based. Roderick Macdonald claimed he had
suffered sex discrimination when forced to leave the Royal Air Force because of
his homosexuality. However, as a homosexual woman would have been required to
leave the RAF, there was no breach of the Sex Discrimination Act 1975 (Macdonald
v Advocate General for Scotland, Pearce v Governing Body of Mayfield School
[2003] UKHL 34). Transsexuals are protected under The Sex Discrimination
(Gender Reassignment) Regulations 1999.

The
Race Relations Act 1976 does not specifically cover religion, but outlaws
discrimination based on ethnic origins. This protects Sikhs and Jewish people:
they are defined by common ethnic origins and are racial groups, not just
religious groups.  Muslims are not
deemed a separate ethnic group and are not protected (although discrimination
against Muslims may be indirect race discrimination, depending on the
racial/ethnic mix of a business’s employees).

Discrimination
on the grounds of sexual orientation, religion or belief may breach the Human
Rights Act 1998, at least where public authorities are concerned, and the
dismissal of employees based solely on their sexual orientation, religion or
belief is likely to be unfair. Other protections include some shop workers’
rights to refuse to work on Sundays.

Sexual
orientation

Under
the SOR it will be unlawful to discriminate against a person on the basis of
their sexual orientation towards persons of the: same sex; opposite sex; or
same and opposite sex. The Government’s explanatory notes state that the SOR do
not cover “sexual practices and preferences (eg sado-masochism and
paedophilia)”.

Religion
or belief

‘Religion
or belief’ is any religion, religious belief or similar philosophical belief.
No list of protected religions or beliefs is given. Philosophical or political
beliefs are not covered unless similar to a religious belief. Factors
considered when deciding what is a religion or belief may include: collective
worship; a clear belief system; profound belief reflecting way of life; or view
of the world. Religion may cover druids, rastafarians, atheists, fringe
religions and cults. The RBR exclude discrimination based on the religion or
belief of the discriminator.

Manifestations
of belief

‘Manifestations’
of a religion or belief will be protected. Employers may need to be flexible to
accommodate cultural or religious holidays, restrictions on working hours,
dietary requirements and prayer room facilities. The regulations will make
issues such as dress codes, time off and office banter more difficult to deal
with, particularly when balancing the workforce’s competing interests.

Who
will be covered?

The
regulations cover discrimination in employment, contract work, certain
office-holdings and partnerships; by trade organisations, bodies conferring
qualifications, employment agencies, certain vocational training providers and
further and higher education institutions. Police constables, barristers and
advocates are covered. Job applicants and employees are protected to determine
who should be offered work, terms and benefits, promotions, training, transfer
and dismissal. Providing a discriminatory reference for an ex-worker, even
where the relationship ends before the regulations come into force, could also
be unlawful.

Those
working wholly or partly in Great Britain are protected. Even those working
wholly outside Great Britain could claim, provided that certain conditions are
met. Multi-national businesses may face a risk of claims from those posted to
intolerant countries. One way around this may be to ensure those recruited to
work overseas are engaged by an overseas-registered subsidiary company with no
place of business in Great Britain.

Perception,
discrimination against others and liability

What
happens if a heterosexual woman is not promoted because her manager believes
she is a lesbian, or a Christian is dismissed because his employer believes he
is a Buddhist? It will be unlawful because direct discrimination can include
discrimination based on perceived sexual orientation, religion or belief, even
if that perception is wrong. 

Direct
discrimination against someone based on the sexual orientation, religion or
belief of someone else is also covered – if an employee is treated badly
because he has bisexual friends, he will be protected.

Employers
will be liable for employees’ discriminatory acts carried out in the course of
employment, unless they have taken such steps as were reasonably practicable to
prevent employees from acting in a discriminatory way.

Burden
of proof

To
succeed on a tribunal claim, the complainant will have to prove facts from
which the tribunal could conclude, in the absence of an adequate explanation,
that the respondent has committed (or is liable for) a discriminatory act. If
the complainant does this, the respondent will be liable, unless it proves that
it did not commit (or should not be treated as having committed) that act.

Defences

There
is generally no justification defence to direct discrimination claims. However,
discrimination may be lawful:


for reasons of national security and positive action


where being of a particular sexual orientation, religion or belief is a genuine
and determining (ie, decisive) occupational requirement, it is proportionate to
apply that requirement and the person to whom that requirement is applied does
not meet it or the employer is not satisfied (on a reasonable basis) that that
person meets it 


in religion or belief cases, where the employer has an ethos based on religion
or belief the genuine occupational requirement need not be a determining factor,
although it must still be proportionate to apply it (so, a Catholic school may
be entitled to require Catholic religious education teachers, but not Catholic
maths teachers)


in sexual orientation cases, “organised religions” may apply a sexual orientation
requirement in order to comply with their doctrines or avoid conflicting with
the strongly held religious convictions of a significant number of their
followers, and


in sexual orientation cases, where benefits provided are dependent on marital
status. Providing pension benefits only for a deceased employee’s widow(er)
will not be discriminatory, but providing the benefits to unmarried opposite
sex partners and not same-sex partners will be.

Indirect
discrimination will be lawful if applying the provision, criterion or practice
was a proportionate means of achieving a legitimate aim. 

Getting
it wrong

Complaints
of discrimination will normally have to be made to the tribunal and within
three months beginning when the act complained of was done. Tribunals will hear
complaints out of time if they consider it just and equitable to do so.
Compensation, including awards for injury to feelings, can be ordered. Awards
are not capped. Tribunals may also make a declaration or recommendation and
award interest, but cannot order reinstatement.

Questionnaires
can be served by those believing they have suffered discrimination or
harassment. Adverse inferences may be drawn, if there is a deliberate failure to
reply without reasonable excuse within eight weeks of a questionnaire’s service
or where a reply is evasive or equivocal.

Compromise
agreements (COT3s where Acas is involved) will be required validly to contract
out of claims.

Acas
guidance

Acas
has published draft guidance on the regulations, available on its website
(www.acas.org.uk). This gives tips, examples and frequently asked questions and
answers. The RBR guidance includes information on commonly practised religions
and beliefs, with festival details. Acas’s guidance is not legally binding, but
can be taken into account by tribunals.

Action


Circulate Acas’s guidance to managers and staff.


Amend equal opportunities policies to prohibit discrimination on the grounds of
sexual orientation, religion or belief.


Train employees so they are familiar with and understand the equal
opportunities policy and what is acceptable behaviour at work. This will help
defend claims that an employer is liable for its employees’ behaviour.


Ensure staff understand that, if they discriminate, they could be personally
liable and ordered to pay compensation to victims themselves.


Ensure policies are enforced and those acting in breach are disciplined fairly
and consistently so policies are taken seriously.


Update diversity monitoring to include sexual orientation, religion and belief.


Review contracts and handbooks to ensure they are not discriminatory. For
example, can rights to time off for religious observance, dependants and
special leave; dress codes; travel expenses; benefits for children and family
be justified?


Review recruitment advertisements, application forms and interview questions.
Advertisements should be accessible to a diverse section of the public. Be
flexible about interview times.


Informal recruitment methods, such as word of mouth, may increase the risk of
claims because of lack of diversity. Similar principles apply to training,
transfer and promotion. Decisions should be transparent and based on objective
competence-related factors.


Review the skills required and selection criteria used in making employment
decisions; if unjustified, they may discriminate indirectly.


Avoid asking personal questions that may be viewed as discriminatory. Focus on
the skills required for the job.


Introduce proper job descriptions, performance and development reviews.


Encourage people to contact a named person in confidence if they have concerns
about discrimination and ensure that person is trained for the role.


Ensure anyone raising concerns in good faith is not victimised.


Hold exit interviews when staff leave, giving them the opportunity to highlight
concerns about the working environment.


Ensure references are fair and balanced.


Consider work premises: should space be set aside for a prayer room; do
catering facilities embrace a range of dietary requirements?

The
regulations confer new rights but leave many issues open to question, providing
a rich source for litigation. Preparation is the key to coping successfully
with the changes.

Sarah
Johnson is a senior solicitor in the employment department at Manches

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