In this series, we delve into the XpertHR reference manual to find essential
information relating to one of our features. This month’s topic…
Background
On 17 October 2002, the EU Council of Ministers agreed on a new Employment
Framework Directive. This provides that it is unlawful to discriminate on the
grounds of sex, racial or ethnic origin, religious belief, disability, age or
sexual orientation. Implementation is subject to transitional provisions, and
the UK has until December 2003 to introduce legislation to prevent
discrimination on the grounds of sexual orientation or religion, and until 2006
to introduce legislation combating age discrimination. Final draft regulations
for the former are expected imminently.
Recruitment
Below are some of the matters that will have to be considered to comply with
the legislation.
– Avoid using age limits or age ranges in job adverts
– Place job adverts specifying only the skills and abilities required for
the post
– Think carefully about the language used in the advert and avoid using
phrases which imply age or religious restrictions, such as ‘young graduates or
mature person’ or ‘Catholic-only business’
– Think strategically about where jobs are advertised – different magazines
and periodicals are aimed at different sectors of the market
Selection
– A candidate’s sexual orientation should have no bearing on whether or not
they are selected for interview and/or ultimately appointed to a position
– Focus on skills, abilities and potential of the candidates when sifting
applications
– Make sure interviewers are aware of the need to ask job-related questions
only
– Use, where possible, a mixed age/religion interviewing panel
– Ensure all interviewers are trained to avoid basing decisions on
prejudices and stereotypes
– Avoid making age an integral part of the application process
– Select on merit, based on the application-form information and the
performance at interview
Promotion and benefits
– Ensure promotion opportunities are advertised through open competition
– Make sure promotion opportunities are made available to all staff who have
demonstrated the ability or the potential to do the job
– Focus on the skills, abilities and potential of candidates when sifting applications
– Reward on merit – when considering fringe benefits for employees, any
scheme from which an employee’s heterosexual partner benefits must also be open
to same-sex partners
Training and development
– Training should be periodically revisited to check if more may be needed
to ensure managers implement the equal opportunities policy, and to encourage
change, where necessary, in the practice of ‘office banter’ relating to sexual
orientation
– Ensure the training and development needs of all staff are regularly
reviewed and that age is not a barrier to training
– Make sure all employees are aware of the training and development
opportunities available and are encouraged to use them
– Focus on individuals’ and the organisation’s needs when providing training
and development opportunities
– Look at how training is delivered, and ensure different learning styles
and needs are addressed
– Make employees aware that harassment on the grounds of sexual orientation
is subject to the employer’s disciplinary process and possibly dismissal
Retirement
– Ensure retirement schemes are fairly applied, taking into account
individual and business needs
– Base the retirement policy on business needs while giving individuals as
much choice as possible
– Make sure the loss to the organisation of skills and abilities is fully
evaluated when operating early retirement schemes
– Consider alternatives to early retirement for those whose skills and
abilities may be lost
– Avoid using age as the sole criterion when operating early retirement
schemes (subject to pension rules)
– Use flexible retirement schemes
– Adopt phased retirement, where possible, to allow employees to alter the
balance of their working and personal lives gradually and to prepare for full
retirement. This can also help the business prepare for the loss of an
employee’s skills
– Make pre-retirement support available to employees
Practical example
ABC Ltd gives its staff a shop discount of 10 per cent off all purchases.
This has recently been extended to employee spouses. A homosexual employee has
challenged this as discriminatory, in that his same-sex partner will not be
able to claim the discount.
The managing director has asked the personnel manager whether ABC could have
any legal liability.
– As currently interpreted, the Sex Discrimination Act 1975 does not extend
to cover discrimination on the grounds of sexual orientation, so there is
unlikely to be any legal liability
– The managing director should be advised that the position will change by
December 2003, when new legislation will outlaw discrimination on the grounds
of sexual orientation, as well as gender
– New policies will need to be introduced before the change in legislation
Documents to review:
– Equal opportunities policy
– Grievance and disciplinary procedures to deal with complaints of
harassment
– Statement of support for victims of harassment
Action point checklist
– Draft your equal opportunities
policy, taking into account:
– staff awareness and training
– job adverts
– application forms
– interviews
– terms and conditions
– harassment and bullying
– employees with a disability
– disciplinary and grievance procedures
– flexible working practices
– family-friendly rights
– third parties
– Be aware that the European Employment Framework Directive
will extend unlawful discrimination to cover religion, age and sexual
orientation
– Monitor the statistics of the make-up of the workforce. Early
warning signs may include inconsistencies with the demographic make-up of the
surrounding area
Questions and answers
Does legislation currently exist
that protects an employee from religious discrimination?
Currently, the UK does not have legislation preventing
discrimination on the grounds of religion or belief except in Northern Ireland.
A person discriminated against on account of their religion must rely on the
indirect discrimination provisions contained in the Race Relations Act 1976,
which provides protection for individuals who experience discrimination on grounds
of colour, race, nationality, ethnic origins and national origins, but not
religion or beliefs. However, the framework directive will extend protection
against discrimination from December.
Are there any other ways that
employers may be found to be acting unlawfully regarding employees’ religious
beliefs?
The Human Rights Act 1998, which came into force on 2 October
2000, has the potential to provide more protection than the limited amount
currently available in relation to religious belief via the Race Relations Act
1976. It incorporates the European Convention on Human Rights into UK law, and
affects the way UK courts interpret domestic legislation.
Can an employer be held liable for
discrimination against an employee on the grounds of their sexual orientation?
Article 141 of the European Treaty does not outlaw pay
discrimination on the grounds of sexual orientation. So far, the courts have
held that discrimination on grounds of sexual orientation is not contrary to
the Sex Discrimination Act 1975. However, there is a possibility that another
court might decide that the Human Rights Act 1998 requires a different approach
to the Sex Discrimination Act, which would give a remedy for discrimination on
grounds of sexual orientation. If the employer is a public authority, an
employee could bring a free-standing claim under the Human Rights Act 1998. In
any event, the Government must introduce legislation to prohibit discrimination
on grounds of sexual orientation by 2 December 2003.
Are older employees protected from
age discrimination?
Although a Code of Practice on Age Diversity in Employment was
issued in 1999, this was designed to advocate ‘good practice’ and does not have
any statutory force.
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How can an employer improve its
equal opportunities record?
By monitoring the sex, ethnic origin, disability, grade and
payment of employees within each department, an employer can check whether
current recruitment practices are reaching the full spectrum of possible
candidates and help guard against any allegations of discriminatory practices.
However, employers should review their monitoring procedures to ensure that the
information required is relevant to the aims of the policy and so does not
infringe the Data Protection Act 1998.
