Draft regulations on sexual orientation and religion introduces many new areas of vulnerability for employers. Christopher Mordue offers advice on how to prepare for them
The DTI's Consultation Paper, Equality and Diversity: The Way Ahead, heralds a major overhaul of UK discrimination legislation. Announced on 22 October, the proposals are extremely wide ranging and include significant changes to existing legislation. However, the headline proposal is the introduction of three new anti-discrimination laws. Proposed legislation on age discrimination will not be issued until after a consultation paper next year. This article examines the potential impact of draft regulations on sexual orientation and religious discrimination.
Currently, no specific legal protection exists in UK law against discrimination on the grounds of sexuality or religious belief. Such claims could be brought as claims of constructive unfair dismissal or forced to fit within the scope of sex or race discrimination respectively. However, gay and lesbian applicants have had little success in bringing claims under the Sex Discrimination Act 1975.
The Court of Appeal has refused to equate harassment on the grounds of sexual orientation with direct sex discrimination. To succeed in such arguments applicants have to show that a homosexual employee of a different sex would not have been subjected to the same treatment. Once such case, Pearce v Governing Body of Mayfield School, is currently being heard by the House of Lords. Similarly, in Grant v South West Trains Ltd, the European Court of Justice declined to decide that an employer's refusal to extend travel discount to same sex partners amounted to sex discrimination.
Nor does the Race Relations Act 1976 afford any straightforward protection against religious discrimination. While some religious groups such as Sikhs and Jews have successfully argued they are distinct ethnic or racial groups, Muslim employees have had to challenge dress codes and refusals of leave for religious holidays using the roundabout route of indirect race discrimination, utilising the shared beliefs of their racial group as part of the assessment of disproportionate impact in terms of race.
One obvious impact of the new regulations is that applicants no longer have to 'shoehorn' their cases into existing legislation.
Given the affinity between