Discrimination – the first steps of a long journey?

Most employers will be aware (unless they have been lucky enough to have
taken an extended winter break away from these shores) that early in December,
two sets of regulations were introduced which are likely to have a far-reaching
impact on the workplace.

The Employment Equality (Sexual Orientation) Regulations 2003 came into
effect on 1 December 2003, making it unlawful to discriminate on the grounds of
sexual orientation in employment and vocational training.

The Employment Equality (Religion or Belief) Regulations 2003, which came
into force on 2 December 2003, make it unlawful to discriminate on the grounds
of religion or belief in the same areas.

Both sets of regulations cover strands of discrimination that will be
familiar to those HR professionals who have had dealings with either sex or
race discrimination claims in the past. Both are similarly drafted and include
concepts of direct discrimination, indirect discrimination, victimisation and
harassment. The Government’s stated aim in drafting the regulations was to
provide a framework for discrimination claims that will eventually be similar
for all types of discrimination, be it based on an individual’s race, sex,
disability, age or either of the new rights.

The Government’s intention to amend legislation to achieve a more consistent
system was included in its consultation paper, Equality and Diversity – The Way
Ahead, published in Spring 2002. This included drafts of the newly passed
regulations and a draft amendment of the Disability Discrimination Act to
include harassment.

Whether this achieves the required harmonisation, or indeed complies with
the European Employment Directive, is open to debate. The redrafting is
particularly difficult for the disability discrimination legislation, which was
originally drafted in a distinctly different manner to the largely consistent
race and sex discrimination legislation. The extent to which the final
regulations will be amended or challenged remains to be seen, but they are due
to be implemented on 1 October 2004.

Alongside the concept of streamlined legislation, the Government has
suggested that the existing regulatory bodies (the Equal Opportunities
Commission, The Disability Rights Commission and so on) should be amalgamated
to produce a discrimination ‘super body’ called the Commission for Equality and
Human Rights, which would deal with human rights issues in addition to the
discrimination claims.

The new regulations will necessitate a review of HR policies and procedures
on diversity, equal opportunities, harassment and dignity at work. They also
emphasise the need to informally assess how confident organisations are in
dealing with harassment issues. In reality, managers – who are in the frontline
in identifying and taking first steps to deal with issues – are rarely properly
trained to handle the type of complaints which can cause even seasoned HR
professionals sleepless nights.

There has been a great deal of criticism of the new regulations. Employment
solicitors have been critical of the drafting, the unions have challenged
whether they go far enough, and some employers’ bodies are concerned they go
too far.

But in considering the regulations, it must be acknowledged that although it
increases the likelihood of legal claims, the European drive to make changes
cannot be resisted. The original European idea is that an individual in the
workplace should be treated fairly and with dignity, and progress on their
merits. It is hard to argue with that.

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