Q&A: The EU Employment and Race Directives

Robin Bloom, partner at law
firm Dickinson Dees answers your questions on the changes to discrimination
laws which come into force in December 2003

Am I correct in
thinking that the new laws on discrimination on the grounds of religion extend
to more than what we might understand to be 
‘ established’ religions?
You are absolutely
right it covers “any religion, religious belief or similar philosophical
belief” and therefore goes further than the current race discrimination
legislation .

This seems to give plenty of scope for argument
over the extent of the legislation – presumably it will cover not just main
stream religious beliefs, but also such diverse beliefs as rastafaranism,
druidism, agnosticism and Seventh Day Adventists. It will be up to individual
courts or tribunals to decide if a belief or religion falls within the ambit of
the legislation, but it will be a brave forum that decides to tell somebody
their sincerely held beliefs are less worthy of protection than those of others
belonging to more established mainstream religions. This could also raise human
rights issues.

Who will be protected by the
legislation on discrimination on the grounds of sexual orientation?
 
That is more straightforward sexual
orientation, which is defined as orientation to people of the same sex (gays
and lesbians), people of the opposite sex (straight men and women) and people
of both sexes (bisexuals). It will not extend to certain sexual practices
(sado-masochists or paedophiles).

I presume this legislation is
intended to grant these people similar rights to those protected by the race,
sex and disability discrimination legislation?
 
That is the Government’s stated intention, but
the legislation is written in more modern and ‘euro-friendly’ language. The
explanatory notes, for example, make it clear that discrimination will include
less favourable treatment based on a perception of someone’s religion, belief
or sexual orientation, irrespective of whether that perception is right or
wrong. As a result if you refuse a promotion to someone on the basis you
believe, that they are bisexual that will be against the Act even if they are,
in fact, straight.  In addition if you
discriminate against someone because of the religion or sexual orientation of
someone else this will also be illegal. As a result if you refuse to employ
someone because of their partner’s religion that would be an illegal act.

I understand that there will be
provisions for indirect discrimination on the grounds of religion, belief or
sexual orientation. Is this right?
Absolutely. This
where the language of the proposed legislation is going to be more modern than
the existing legislation. Indirect discrimination under the proposed
legislation will occur when you have a ‘provision, criteria or practice’ which
puts the protected person at a particular disadvantage, that the person
complaining suffers that disadvantage and the employer can not justify the
‘provision, criteria or practice’. I can see some interesting arguments over
shift patterns during Ramadan and Sunday working for Seven Day Adventists.

I have never really understood how
the concept of harassment was covered by the previous legislation. Is it made
any clearer in these proposals?
Yes, for the first
time both these proposals include a specific definition of harassment. For the
purposes of these behaviours is defined as conduct that either violates the
employee’s dignity or creates an offensive environment for the person to work
in.

This is a very broad definition. The intention
appears to be that this will be judged objectively to protect employers’ from
over-sensitive employees. But equally this objectivity will be that of an
Employment Tribunal which is often far more sensitive than the shopfloor.

The potential for litigation arising from
sectarian jokes or for politically incorrect comments in the workplace is
immense. Undoubtedly pressure groups will seek to identify and run test cases.

The real challenge will be to re-educate not
only management, but the workforce as a whole by December 2003 – bearing in
mind employers are vicariously liable for the acts of their employees unless
they have taken reasonable steps to prevent the acts. I am already aware of an
employer who is facing a personal injury claim from an employee who was taunted
by colleagues with homophobic comments that allegedly resulted in the breakdown
of his marriage and a nervous breakdown. This was despite the fact there was no
evidence of him being a homosexual, and this case is typical of the challenges
management will face in the future.

What about religious organisations; will they
be forced to employ people from other religions?
 
No. Both sets of legislation provide a defence
where there is a genuine occupational requirement (GOR) for someone to be
treated differently on the grounds of their religion or belief (or sexual
orientation).

This will mean, for example, that an employer
who specifically requires a Jewish chaplain will be able to appoint a Jewish
person to that role. The proposal, however, goes further than this in respect
of religion and belief and says that where an employer has an ethos based on a
religion or belief then there will be a broader definition of the GOR where it
will not need to be a determining (decisive) requirement, but will still need
to be a requirement for the job. This should mean that a catholic school will
be able to argue that it requires a head teacher who is a catholic, but would
probably not be able to insist that a groundsman be catholic.

Will this new legislation mean we can longer
take positive action if we feel there is discrimination on the grounds of
religion, belief or sexual orientation?
Quite the opposite.
The legislation will allow for positive action in a larger range of circumstances
than is permitted under the Race Relations Act. You will not need to show that
a religion is under-represented, but merely that the positive action will
compensate for disadvantages linked to it. This will mean you will be able to
positively discriminate if persons of a religion, belief or particular sexual
orientation are not just under-represented but also subjected to harassment
such as religious bigotry or homophobia.

Will a breach of these new regulations result
in similar consequences to breaches of the existing legislation on
discrimination?
 
Right again. There is provision for the issuing
of questionnaires and applications to tribunals with orders for compensation,
declarations and recommendations.

What can I do now to prepare for this legislation
and minimise its impact on my business?
Review your current
equal opportunities and diversity policies to make sure they cover not only
religion but the broader definition set out above and sexual orientation. If
they do not, rewrite them; if they do, make sure you re-emphasise the
importance of the policies to managers and that they cascade this information
to the most junior employees. A brief training session would provide a useful
opportunity to raise awareness.

Do not forget to remind staff of the need to
protect people from violations of dignity and working in an offensive
environment. This could be linked into dignity at work policies and training.

For those employers currently pursuing best
practice this should be no more than an unnecessary additional legal
requirement, but for those who have traditionally done the bare minimum this is
a significant further raising of the bar.

While carrying out these reviews you might also
bear in mind that the Government is committed to introduce similar legislation
to protect against discrimination on the grounds of age by 2006 (and increasing
the protection for disabled people by 2004). You can expect the legislation on
age to contain similar provisions.

When will the new legislation on religion,
beliefs and sexual orientation become law?
2 December 2003.
This is the last date permitted under the EU Directive responsible for the
introduction of this legislation

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