Employers will need more effective management and monitoring of
anti-discrimination policies to comply with new legislation from Europe,
lawyers are warning.
New draft regulations introducing protection from discrimination on the
grounds of sexual orientation and religious or philosophical belief are set to
become law by the end of 2003. And they are going to make employers more
vulnerable to liability.
"Monitoring and management is going to be much more difficult than at
present," said Christopher Mordue, associate at Pinsent Curtis Biddle.
"To a much greater extent we are talking about protecting parts of an
individual’s life which may be known only to those working most closely with
them," he said. "It is those colleagues who may cause liability
through inappropriate language or behaviour."
The legislation, particularly in relation to sexual orientation, is likely
to trigger a huge increase in discrimination and harassment claims brought
about by offensive office banter, e-mails and other everyday aspects of the
working environment, he warned.
"Employers should be using the time they have left to take a good hard
look not only at their paper equal opportunities policies but on how those
statements are put into practice," he said.
The new laws relating to sexual orientation will at least bring clarity to
what has been a grey area. At present it is unclear whether gay employees have
any protection from harassment or discrimination. The case of Pearce v
Governing Body of Mayfield School in which a lesbian teacher is seeking
compensation under the Sex Discrimination Act 1975 for homophobic abuse by
pupils, is set to be heard in the House of Lords during November.
The new law, banning discrimination on grounds of religious or philosophical
belief is likely to cause problems because of the lack of clarity on what kinds
of ‘belief’ are covered.
"In its draft form, the legislation will leave it open to the chair of
any employment tribunal to make essentially philosophical decisions about what
types of discrimination could be considered," said Rachel Dineley, partner
at Beachcroft Wansbroughs.
Lawyers also foresee a raft of claims relating to time off for religious
observances.
In addition, for the first time in UK discrimination law the regulations
will introduce a definition of harassment that will apply across the board.
It will outline a semi-subjective test whereby if the claimant reasonably
believe she or she has been subjected to the kind of behaviour specified, the
definition is met.
There will also be a switch in the burden of proof in race discrimination
claims, in line with the amendments made to the SDA last year.
"This is a fundamental change," Mordue warns. "If you cannot
come up with a non-discriminatory explanation for apparently discriminatory
treatment, you lose – end of story."
What do the draft regulations contain?
Race discrimination
– Protection greatly increased
– New wide-ranging right to protection from harassment
including by unions and employment agencies
– Burden of proof reversed
– Expected implementation date 1 July 2003
Sexual orientation
– Outlaws direct and indirect discrimination, victimisation and
harassment
– Post-employment victimisation prohibited
– Expected implementation date1 December 2003
Religion and belief
– Outlaws discrimination on grounds of religion or belief in
employment and training
– Includes direct and indirect discrimination, victimisation
and harassment
– Expected implementation date 2 December 2003
Generally
– A new definition of harassment. A claimant will have to show
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– That their dignity has been violated. or
– They have been subjected to an intimidating, hostile,
degrading, humiliating, or offensive environment
