There
are many grey areas to be tested when the new forms of discrimination come into
being later this year. Pauline Matthews envisages some of the scenarios that
might cause problems and offers possible solutions
Orientation Exercise
Mr Key recently went to work for Soap UK in PR. His female boss,
Cynthia, made advances to him, but he politely told her he had a partner, Gary.
Since then Cynthia has called him ‘poofter’ and ‘nancy’ to his colleagues.
Pauline Matthews comments: Key may have a claim that he has been
discriminated against on the grounds of his sexual orientation in that he has
been harassed by the use of the words poofter and nancy, which refer to his
sexual orientation.
In Smith v Gardner Merchant, CA 1998 IRLR 510, the Court of Appeal (CA)
ruled that, although the Sex Discrimination Act does not prohibit less
favourable treatment on grounds of sexual orientation, discrimination based on
the employee’s sexual orientation might be discrimination on the basis of sex
where it can be shown that a comparator of the opposite sex would not have been
treated in the same way in like-for-like circumstances.
But who is the correct comparator in this case? It has to be a woman, but
should it be a lesbian? The correct comparison in this instance, according the
CA, is to compare how a homosexual man was treated to how a homosexual woman
was, or would have been, treated. If she would not have been treated in such a
derogatory way, then the male must have been treated less favourably because of
his sex.
A similar case, Pearce v the Governors of Mayfield School, 2001 IRLR 669,
has been appealed to the House of Lords, and it is possible that it may decide
that sexual orientation should be included in the Sex Discrimination Act 1975.
This claim concerns the harassment of a teacher by pupils at the school who
called her derogatory lesbian names. When the case went to the CA, one of the
judges indicated that had the discrimination occurred after the Human Rights
Act 1998 came into force (October 2000), she would have construed the Sex
Discrimination Act to include sexual orientation discrimination. It is possible
that the House of Lords may follow her opinion, in which case claims relating
to sexual orientation discrimination since October 2000 will be unlawful prior
to the introduction of the new legislation in December of this year.
This legislation, outlawing sexual orientation discrimination, has been laid
before Parliament and will be effective from December.
As currently drafted, the regulations suggest that if someone is upset by
comments which were said not with the intention of causing them distress and
which would not cause offence to a reasonable person, then harassment will not
be established. Intentionally hurtful comments will be harassment. Cynthia’s
intention is hostile and the terminology used is widely accepted to be
derogatory. Therefore, it is likely that Key would be able to claim once the
new sexual orientation discrimination laws are brought in.
The employer has two possible further defences. Soap UK could show there was
no detriment as Key ‘gave as good as he got’ or that he used such terminology
himself (although this would not necessarily be conclusive as he could be upset
by a non-gay person using terminology that he feels is acceptable for gay
people to use). Second, the firm could establish a ‘reasonable steps’ defence.
To do this, the employer needs to show that he actively tried to prevent any
discrimination occurring, but tribunals differ in what they find acceptable.
However, the basic necessities would be an equal opportunities policy, a
harassment and bullying policy, training of all members of staff in the
policies, and regular reinforcement of the message. Employers with these in
place already for sex, race and disability need to update them to include
sexual orientation and religion (see below). Note that sexual orientation
discrimination includes heterosexuality and bisexuality so that, if the roles
were reversed, there would still be discrimination.
Human rights and religion
Mr Sadiq, a possible new recruit, was the best person at interview
and has now telephoned you to say that although he would very much like the
job, he is a devout Muslim and therefore must have time off on Friday
afternoons. The job requires working a rota Friday afternoons. Can the employer
refuse him the job?
PM comments: Sadiq cannot currently bring a claim of direct
discrimination as Muslims do not form a racial or ethnic group for the purposes
of the Race Relations Act 1976. At present there is no protection for religious
discrimination, but this is being introduced in December. However, it is
possible to bring an indirect race discrimination claim in these circumstances.
The definition of indirect race discrimination is going to change in July,
to make it consistent with the SDA. The new definition says indirect
discrimination occurs where ‘a provision, criterion or practice’ is applied
which puts persons not of the same race at a disadvantage and cannot be shown
to be a proportionate means of achieving a legitimate aim (ie, cannot be
justified).
In Walker v Hussain, EAT 1996 IRLR 11, Muslim staff wanted to take time off
in the summer to celebrate Eid. However, there was a ban on taking holidays
over that period and several were disciplined for taking unapproved holiday. To
find indirect discrimination in these circumstances, it must be shown that the
practice had a disparate impact on one racial or ethnic group, in this case
Asian, therefore there must be a congruence in the workplace between the Asian
population and the Muslim religion.
In this case, even if discrimination is found, it can be objectively
justified. The employer would have to make out a good case why he needed the
work doing on a Friday and show that he considered alternatives, but they were
not feasible. If the applicant could have made up the hours at some other time
without affecting business operations too adversely, it is unlikely the
employer would be successful in objectively justifying the five-day
requirement.
Following the introduction of the religious discrimination regulations,
Sadiq would be able to rely on a religious discrimination claim. The
regulations are not clear as to whether the ‘collateral’ effects of holding a
religious belief (or manifestations as the Human Rights Convention refers to
it) can constitute direct discrimination. For example, can the need to take
holiday or wear a certain dress which is required by your religion but which
leads to detrimental treatment, be direct discrimination or are these
manifestations of a religious belief rather than the religious belief itself
and to be construed as indirect discrimination?
Case law on the Human Rights Act 1998 offers some guidance, as it
differentiates between discrimination on the grounds of actual religious belief
and discrimination on the grounds of the manifestations of that religious
belief. In the latter case the discrimination can be justified on certain
grounds. It is more likely that such scenarios would be regarded as indirect
discrimination under the new regulations. It will be easier for a worker to
show disadvantage in relation to their religious group than it is at present
under the Race Relations Act in relation to ethnic group. Once the worker can
do this, the employer must objectively justify any alleged discrimination.
It is interesting to note that in a similar Human Rights Act case, where a
worker requested time off for religious observance, the European Court of Human
Rights decided that it was acceptable for the employer to insist on attendance
at certain times (Ahmad v UK (1982)). However, this is an old case and may not
be followed in the light of altered social circumstances.
Religious freedoms
George comes to work on 1 January 2004 in a bright orange long skirt
and kaftan, he has shaved his head and says he has adopted a new religion,
Acornism. He is strictly vegan and wants to be called ‘Peace Forever’ from now
on. Another employee, John, is Rastafarian and has always worn dreadlocks which
the employer says is acceptable because he does not work directly with
customers. Both George and John have applied for promotion which will involve
face-to-face contact with clients. The employer does not think either
appearance would be good for business. Further, a gay man, Peter, is applying
for the job – he is open about his sexuality but the HR manager who is
interviewing is a strict Christian and objects to homosexuality on religious
grounds. What should the employer do?
PM comments: Following the introduction of religious discrimination
in December, discrimination on the grounds of religion or similar philosophical
belief will be unlawful. The Government, however, has not defined religious
belief and has indicated it will leave it to tribunals to draw up a definition
from developing case law. This creates problems for employers who have to
decide for themselves what will and will not constitute a religion when seeking
to accommodate workers and run their business. The Government has given some
guidance on what would constitute a religion, such factors being collective
worship, clear belief system, profound belief affecting the way of life or the
view of the world. The notes accompanying the regulations state the definition
does not include philosophical or political belief unless it is similar to a
religious belief.
It is not clear in this case whether George’s Acornism would come within the
definition of religion, or a similar philosophical belief. However, it is
highly likely that John’s Rastafarianism would be.
Nevertheless, if the employer decides it cannot offer either of them the
post because of their appearance, their appearance being the result of their
religious beliefs, this is arguably indirect discrimination and the employer must
objectively justify why George and John are not going to be considered for the
role. The employer would have to show a good business case for customers being
put off by their appearance and may have difficulty in doing so. In these days
of diversity and changes to what is socially acceptable dress (such as David
Beckham wearing a sarong or hair braids), it is generally regarded as an asset
to a business to have a diverse workforce.
In relation to Peter, it is worth noting that the religious discrimination
provisions also include the possibility of discrimination by somebody because
of their own religion rather than discrimination against the worker because of
the worker’s religion. Therefore, Peter may possibly be able to claim sexual
orientation and religious discrimination if the HR manager turns him down for
the job because he is gay. The HR manager will be discriminating against Peter
because the HR manager is a Christian.
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Though the Government recently indicated it may allow religious
organisations to discriminate against individuals on the grounds of their
sexuality where this clashed with their religious beliefs, the overall rule is
that religious beliefs will not be an excuse to discriminate on grounds of
sexual orientation.
Pauline Matthews is an employment associate at DLA
