In on the act: EC race and equal treatment directives

Our continuing series of guides to major employment legislation puts key
information at your fingertips and brings you up-to-date with the latest
developments. This week Sarah Lamont, a partner at Bevan Ashford, examines the
impact the EC Race Directive and EC Equal Treatment Directive will have on the
Race Relations Act 1976

The provisions of two recently adopted European directives are set to have
an impact on UK race discrimination legislation.

The EC Race Directive (No 2000.43) will mean changes to the Race Relations
Act 1976 and must be implemented by July 2003, while the EC Equal Treatment
‘Framework Directive’ (No. 2000/78) establishes a general framework for equal
treatment in employment for protection – including discrimination on the basis
of religion and belief – which must be imple- mented by 2 December 2003.

The Government has conducted a consultation process through its paper,
Towards Equality and Diversity, and has set out its proposals.

Currently, the RRA protects employees from unlawful discrimination based on
the grounds of their race or ethnic background.

In brief, the Act outlaws direct discrimination, which is less favourable
treatment on the grounds of race or ethnicity; indirect discrimination, where a
requirement or condition is applied that one racial group will find more difficult
to comply with than another group, so subjecting its members to a detriment,
and where the employer cannot justify that requirement or condition. It also
outlaws victimisation, where an employee is treated unfavourably because he or
she has made a complaint of race discrimination.

However, there are limits to the protection. For instance, an employee
cannot normally bring a claim for discrimination that takes place after the
employment contract has ended – for example if an employer deliberately failed
to give a reference because an ex-employee had complained about racial
discrimination prior to leaving its employ.

Employers may lawfully discriminate on grounds of race in respect of certain
jobs where being of a particular racial group is a genuine occupational
qualification for the job.

Further, although religious discrimination may amount to unlawful racial
discrimination in certain circumstances, such as where the religious group also
constitutes a race – Jews or Sikhs, for example – there is no specific ban on
discrimination on grounds of religion. There is also no statutory definition of
harassment.

Instead, harassment is interpreted through case law as being covered by the
prohibition on less favourable treatment.

The directives

As a result of the directives, the proposed changes would be as follows:

l In relation to harassment, the new definition (effectively, un-wanted
conduct which violates a person’s dignity and creates a hostile working
environment), is actually narrower than the current case law definition. This
is because it also requires a person to demonstrate the existence of a hostile
environment.

So, to avoid reducing the current protection, the Government will either
retain the case law definition for race cases and use the more restrictive
definition for religious discrimination or, more likely, adopt the case law
definition across the board.

The Government also proposes including a more objective element in deciding
whether there has been harassment (namely, whether a reasonable person, not
just the complainant, would have regarded the action as harassment). This would
protect employers from unduly sensitive complainants, but could be
problematical in practice.

l The definition of indirect discrimination will need to be extended to
cover an "apparently neutral provision, criterion or practice which would
put a person at a particular disadvantage compared with others" – not
simply the "requirement or condition" which is in the current
provisions.

The comparison to be carried out between those who can and cannot comply is
also affected; the directive requires that disparate impact can be established
by means other than reliance on statistical evidence.

l For post-employment acts of discrimination, the proposal isto allow an
ex-employee to claim, which would cover, for example, references, and would
bring it in line with sex discrimination law.

l It is also possible that the RRA will be amended to include the entirely
new provisions to outlaw discrimination on the grounds of "religion or
belief" required by the Framework Directive by 2 December 2003.

This would cover discrimination on grounds of not belonging to a particular
religious group, as well as discrimination on grounds of practising a
particular religion. The Government does not propose to define
"religion" but will make it clear that "belief" is to mean
religious belief or "profound philosophical convictions" akin to
religious beliefs and excludes political belief. The directive refers to particular
areas where this would impact on employers such as time off for religious
observance, dress and diet.

l Finally, similar to the ‘genuine occupational requirement’ justification
for discrimination, mentioned above, the directives allow employers to
discriminate where race or religion is a "genuine and determining
occupational requirement" and unlike the RRA, this defence is not limited
to certain sectors of work.

In addition, the framework directive allows special provisions in respect of
religious organisations. The Government proposes to include employers such as
schools to employ certain staff who have a particular faith in order to
preserve the ethos of that organisation.

Consultation

The consultation period closed in March 2002 and the Government’s timetable
is to carry out consultation on the amending regulations in the second half of
this year.

While it will be some time before the legislation comes into force, it is
clear that protection against discrimination in the employment field is coming
firmly into the spotlight.

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