Discrimination on the grounds of religion, belief and sexual orientation
will soon be illegal, but legal experts are concerned that it could lead to an
increase in workplace disputes. Quentin Reade reports
Impending new laws outlawing discrimination at work on the grounds of
religion, belief and sexual orientation will create a ‘minefield’ of employment
tribunal claims.
The proposed legislation, announced by Barbara Roche, the minister
responsible for equality, is being introduced to bring the UK in line with
existing EU directives and will come into force by December 2003.
The legislation also covers age discrimination, but this aspect will not
become law in this country until 2006.
The new laws have been widely welcomed but employment experts warn that the
section banning religious discrimi- nation will create problems because of its
wide scope – protecting both religions and "similar philosophical
beliefs".
Robin Bloom, partner at law firm Dickinson Dees, said the new legislation is
sure to generate more employment tribunal claims because the definition of
religion is open to interpretation.
"It opens up a new avenue of claims. Some employers won’t be prepared
and there will be people who want to exploit that. Some people will be looking
to push it in some areas," he said.
He said many employers would be unaware that the rules, which are subject to
consultation until 24 January 2003, cover areas such as Rastafarianism and
Druidism.
Under the legislation the rights of atheists and humanists will also have to
be taken into account by employers.
Sue Ashtiany, partner and head of employment law at Nabarro Nathanson, believes
that difficulties may arise because some religions "don’t sit well"
with others and with other workplace rights.
Some areas of Islam, Christianity and Judaism frown on homosexuality, she
said, and followers may not wish to work alongside a gay colleague. This would
create a conflict of rights – something she believes the Government needs to
address.
"What will happen when rights clash?" she said. "That is a
matter for the Government."
Ashtiany said HR should start finding out now what faiths their employees
belong to, what their rights are under the legislation and, where necessary,
how their needs can be met.
Dianah Worman, CIPD adviser on equal opportunities, agreed that the issue of
conflicting rights is set to create difficulties for employers and the CIPD is
looking into the matter.
Another area Worman believes may cause contention is how an employee proves
they belong to a faith, and is not simply claiming a particular belief to gain
special treatment at work. "It’s a big challenge," she said. "We
need to work out how we can deal with it sensibly."
Employers will be also considered discriminatory if they make assumptions
about a person’s beliefs based on their religion.
Bloom gives the example of an employer assuming that because someone is Rastafarian
they smoke cannabis.
However, the regulations for both sexual orientation and religion contain
exemptions when discrimination is a "genuine occupational
requirement". For example, it will permissible to require a Jewish Chaplin
in the Army to be Jewish.
Organisations based on a religious ethos – such as a religious school – will
also be allowed to favour members of their own religion.
The CBI welcomed the new anti-discrimination rules but stressed that further
detailed guidance is needed.
Susan Anderson, CBI director of human resources policy, said:
"Ministers must now set out the parameters clearly. Companies will not
understand if they face unnecessary and expensive litigation through no fault
of their own."
The introduction of legislation banning discrimination based on sexual
orientation is not expected to create too many problems, said Ashtiany.
"In this case, legislation is playing catch-up. Most company equal
opportunity policies already address it," she said.
The changes will also see some people in same-sex relationships get improved
pension rights, and the CIPD has warned that companies will need to check they
don’t exclude gay people by offering better pension benefits to married
couples.
New disability regulations are also due to come into force. From 1 October
2004, the Disability Discrimination Act 1995, will be amended to give a clearer
definition of discrimination on grounds of disability.
The changes will also introduce a defence to the duty to make reasonable
adjustments if the employer didn’t know the employee was disabled.
What happens next?
Equality and Diversity – The Way
Ahead is available at www.dti.gov.uk/er/equality
The consultation closes on 24 January 2003
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