New equality law: Introduction

Section one of the Personnel Today Management Resources one stop guide to new equality laws. Other sections.

Use this section to Understand why we need new equality laws Examine what makes a strong equal opportunities policy Realise the differences between 'equality' and 'diversity'

Equality in the workplace simply makes good sense

Nevertheless, ensuring equal employment opportunities are available and offered to all isn't easy. Mistakes are all too easy for even the best-intentioned employers to make.

Existing and upcoming legislation on ending discrimination in the workplace is intended to expand the employment and vocational training opportunities available to people who may have previously experienced discrimination, and to prevent future generations from experiencing it. It is also intended to make workplaces healthier, happier and more productive environments for all.

This guide covers recent and future UK anti-discrimination legislation on disability, religion or belief, sexual orientation and age resulting from the Employment Framework Directive 2000/78/EC. The Directive makes it unlawful to discriminate on the basis of sex, racial or ethnic origin, religious belief, disability, age or sexual orientation. UK legislation on racial discrimination is contained in the Race Relations Act 1976 and the RRA (Amendment) Regulations 2003.

The UK's Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 came into force on 1 and 2 December 2003 respectively.

In terms of disability discrimination legislation, the Disability Discrimination Act (DDA) 1995 (Amendment) Regulations 2003 took effect from 1 October 2004. Age discrimination in employment and vocational training will become unlawful on 1 October 2006.

The basic premise of these separate strands of legislation is similar, with regards to discrimination against individual situations each represents. But there are subtle differences between them that can be confusing.

Even before this most recent clutch of legislation, a University of Cambridge study in 2000 concluded: "The statutes are written in a language and style that renders them largely inaccessible to those whose actions they are intended to influence. Human resource managers, trade union officials, officers of public authorities and those who represent victims of discrimination find difficulty in picking their way through it."

An additional complication in the UK is that there is no single cohesive body representing equality interests across the board. The government has announced plans to create a single equality and human rights commission, which will then be tasked to develop a single equality act. (See Section 6 on the Single Equality Act) Nevertheless, the creation of both will take time.

Until then, employers must grapple with separate legislation. Keep in mind, however, that the best ways to prevent discrimination from occurring and discrimination claims are treating job applicants and employees fairly and with sensitivity, and recruiting and promoting according to job performance and potential.

Benefits

Why put the regulations into effect at your business? First of all, it's the law. But there are many other good reasons for working to ensure your workforce reflects different segments of local society. They include:

Attracting and recruiting from the widest and best possible pool of candidates for jobs in your business

Retaining trained and experienced staff

Being seen as an employer of choice

Having a healthy and stable corporate image provides stakeholder returns

Increasing motivation and productivity by providing opportunity based on merit and potential

Having a workforce that reflects the diversity of the potential customer base as well as relating to the customers

Being able as a company to fully develop and exploit the creativity that comes from having a variety of perspectives and experiences within the workforce.

Remedies and penalties

Discrimination can be expensive. In Discrimination remedies and penalties, online HR information source XpertHR points out a number of remedies and penalties that employment tribunals can hand down in cases where discrimination is found to have occurred.

Non-compensatory awards are rare, but employment tribunals have the option to issue the following:

A declaration, or an order declaring the rights of the parties in relation to the act/matters complained of

A recommendation that the respondent take reasonable steps to correct or reduce the adverse effect on the complainant can be made subject to compliance within a specified period of time.

Financial compensation can involve:

The calculation of loss of earnings and fringe benefits, both past and future

Net losses based upon the amount of money an applicant has already received

Awards for injury to feelings

Increased awards for injury to feelings if the employer has acted in a particularly malicious manner

Damages intended to punish the wrongdoer instead of compensate the claimant

Compensation for personal injury that results from the discriminatory act.

And then there is the cost to your organisation's reputation and the impact on morale that even one discrimination claim can cause.

An equal opportunities policy

The first step to creating a discrimination-free zone at your company is to have and enforce a strong equal opportunities policy that is well known and understood by your employees.

The sections of this guide on the different legislative strands will advise you on specific areas of focus. However, here are some fundamental elements to consider when you are developing and implementing your company equal opportunities policy:

Staff awareness and training on your equal opportunities policy

Job advertisements

Application forms

Interviews

Terms and conditions

Harassment and bullying

Disciplinary and grievance procedures

Flexible working practices

Family and partner-friendly policies

Third parties, for instance recruitment and temporary worker agencies, contractors or customers.

(See box below for an example of a basic equal opportunities policy that can be modified and adapted for your company.)

Monitoring

It is not a legal requirement to monitor the distribution of ages, disabilities, religions or beliefs, and sexual orientation throughout your workforce for equality or diversity purposes - but it is highly recommended and considered good practice.

Why monitor?

Knowing the make-up of your workforce will help leaders understand how recruitment, training, promotion and retention practices are working within your organisation, and whether your workforce reflects the diversity of your local community

It helps to better understand the needs of your workforce and match them as much as possible with your business needs, such as in planning for work cover during periods of particular religious significance. It can also provide insight into issues such as the likelihood of potential requests for space for prayer or meditation and help you gauge in advance and plan the degree to which your business can accommodate such requests

Monitoring can help pinpoint specific problem areas within your business: does staff turnover in a particular section reflect an inordinately high number of people of a certain religion/belief or sexual orientation, for instance? Or do some divisions lack any members of a certain age group? Are employees with disabilities hired only in one or two departments of your business? Do employees of a particular faith dominate a certain type of job?

Asking staff to identify their religion/belief, sexual orientation, disability or age group opens the door to asking if they have ever felt they have been treated less favourably, harassed or victimised or otherwise discriminated against on the basis of these points. If results suggest that such treatment may have occurred, let your workforce know these concerns are a serious matter, that discrimination is a disciplinary issue and victims will be supported.

What you need to do if you monitor:

Tell your employees why you are asking for the information, and how it will be used

Assure them - and ensure these assurances are carried out - that confidentiality and anonymity will be observed

Remember: such information is covered under the Data Protection Act

Advise employees that they are not required to give this information

Understand that you are asking employees for highly sensitive information, and particularly on the topic of sexual orientation, respondents may underreport.

Awareness raising

To signal the seriousness of its intent on the religion/belief and sexual orientation measures, the Department of Trade and Industry in November 2004 announced £1.4m worth of cash awards to organisations throughout the UK to inform businesses and individuals about their rights and responsibilities under the Employment Equality (Sexual Orientation and Religion or Belief) Regulations 2003.

One of the largest awards, £250,000, went to the Muslim Council of Britain for a wide-ranging programme of awareness-raising activities.

Being aware of which projects have been initiated by which organisations will help you locate specific training and education programmes to better understand issues facing individual groups within the religion/belief or sexual orientation spectrum.

Projects with the broadest reach throughout the UK include:

An employment booklet that was produced by the Board of Deputies of British Jews, the representative body of Great Britain's Jewish community, for employers and Jewish employees. The booklet is intended to shed light on the Employment Equality (Religion or Belief) Regulations 2003 as they related to employment practices for Jewish employees

An awareness-raising campaign by Citizens Advice that will include seminars, distribution of information materials in hardcopy and on the web

Information and training materials on religion and belief issues for employers and individuals, including new web-based resources, by non-profit making body Diversiton

Producing and spreading awareness-raising information specifically geared to the Ethiopian, Eritrean and Somali communities on sexual orientation and religion/belief issues through the Ethiopian Community Centre in the UK

Raising awareness and understanding of the religion/belief Employment Equality Regulations among employers as well as training providers and disseminating information on the legislation more widely through the multi-faith regeneration agency, Faith Regen UK

Raising awareness and understanding of the Employment Equality (Sexual Orientation) Regulations 2003 within the lesbian, gay, bisexual (LGB) community and advisory organisations through training courses and seminars via the PACE and GALOP organisations

A variety of awareness-raising programmes within the UK's Muslim community through the Muslim Council of Britain about the religion/belief equality regulations, with the offerings to include briefing Imams to spread information through mosques and during key religious festivals, providing 'good practice' guidance for mainstream agencies and large employers on Muslim issues and cultural awareness, improving the MCB's website to include employment frequently asked questions, and working with advisory organisations to ensure better understanding of the regulations and the Muslim faith

Updating Stonewall's Employer's Guide to the New Employment Equality (Sexual Orientation) Regulations 2003, which includes a 'best practice' toolkit and publishing and distributing a new edition of pocket-sized guidelines for employees

Training the Workers Educational Association about the religion/belief and sexual orientation regulations so they can run training for employers and employees of small and medium-size enterprises and community organisations

Developing an awareness-raising tool by the National Association of Councils for Voluntary Service which will help Councils for Voluntary Service and other second-tier support organisations' practice in diversity issues

Piloting a website and developing information leaflets through the National Children's Bureau for young people on their rights and responsibilities with regard to the equality regulations

Producing awareness-raising materials for Catholic organisations through the Catholic Bishops Conference of England and Wales so that the organisations understand the legislation's specifics.

Age - the X factor

The precise points and language of the forthcoming age discrimination legislation are not yet known, and the publication of draft regulations, expected in 2004, has been delayed until 2005 - a concern for many employers given the impact it is likely to have on their organisations.

Writing in Employers' Law (see EFA calls on Government to set up equality advice body), Sam Mercer, director of the UK's Employers Forum on Age, suggests that the UK should look to Ireland for the shape of things to come in terms of the impact age discrimination law could have on the workplace. In one Irish case, the low-cost airline Ryanair ran into trouble when it advertised for a "young, dynamic professional". The company defended itself at a tribunal by saying that 'young' meant 'young at heart', but evidence submitted showed that none of 28 candidates who applied for the job were over 40 and that the company's interview and selection procedures were not consistent with its equal opportunities policy.

In another case in Ireland, a civil servant won €40, 000 compensation when he was able to prove that he had been discriminated against in two applications for promotion because he was over 50. He produced figures to prove that no candidate over 50 was successful in applying for certain high-level positions during a four-year period.

"There is a great deal we can learn from Ireland," Mercer wrote in Employers' Law. "First, even if it is found that discrimination has not taken place, employers will have to use significant resources to successfully defend a claim. Secondly, recruitment and promotion will be popular areas for claims - specifically internal recruitment where individuals have knowledge of a company's culture and are likely to be more confident; and finally employment procedures need to be transparent and should be backed up by records."

While UK employers wait to see what the draft regulations will say, a wide-ranging field of research is under way into the habits and aspirations of older workers, which will give employers greater insight into better utilising existing employees and job applicants at the more seasoned end of the spectrum when the legislation takes effect.

For instance, the Centre for Research into the Older Workforce (CROW) is exploring ways of enabling older people to make a more active contribution to the economy. CROW, a partnership between the University of Surrey, the National Institute for Continuing Education (NIACE) and the Pre-Retirement Association, with core funding from the South East England Development Agency, is focusing its research on three main areas:

Motivation: what motivates older people to stay in work, leave or return to the labour market

Work design: or how can work be better designed to suit the diverse needs of older workers

Intermediaries: or how can information, advice and recruitment agencies, education and training providers and others help older people to stay in and return to rewarding work.

Already, CROW's research to date offers employers insight into trends and issues they should be aware of as the emphasis increases on keeping people in the workforce longer than before. Any policy initiatives aimed at increasing workforce participation by older workers will have to forgo the stereotypes and take into account very different experiences and aspirations of the qualified and the unqualified. Also, the research shows that the extent to which people feel in control of their working lives affects their attitudes to work and willingness to stay in work longer.

In addition, CROW has found what it says appears to be "a serious mismatch" between the numbers of people who increase their skills and responsibility with job change, and the numbers who receive support. "It is probably that training at this point would be particularly effective at raising skill levels, and that greater investment here would be productive," says the CROW study, Changing Work in Later Life: A study of job transitions.

What is clear is that the legislation will have to reflect major cultural issues as well as legal ones: in short the expectations of the "baby boomer" generation (born between 1945 and 1964), as pointed out in the report The New Old: Why the baby boomers won't be pensioned off by independent think-tank Demos.

"The baby boomers have transformed every station they have passed through and show no sign of stopping in old age," the report says. "As a result, we must confront the conceptual framework we use to think about ageing and the conventional wisdom about the central political or governance challenge it poses.

"Conceptually," it continues, "we need to focus less on abstract demographic trends and look in much closer detail at the underlying social, cultural and attitudinal characteristics of the baby boomer generation."

Another Demos report, Eternal Youth: How the baby boomers are having their time again, attributes the belief that old age begins at 65 to the post-war origins of the modern welfare state and "society's calculations at that time about when it could afford to have us retire." It says that many baby boomers interviewed for the report believe that "old age begins at 80, a full 15 years beyond our traditional state pension age".

The results of a March 2003 report by the Chartered Institute of Personnel and Development (CIPD) called Age, pensions and retirement: Attitudes and expectations also confirm that people are not clinging to stereotypical views about ageing and work - 60 per cent of the 599 respondents to a telephone survey of working and retired people believed that skills and personality, not age, were the critical factors in a person's ability to do a good job. Two-thirds of the respondents said they believed there should not be a mandatory retirement age.

Reasonable accommodation

For disabled workers and, ultimately, some older employees, employers will need to implement physical changes in the workplace in terms of 'reasonable accommodations' along with providing fair treatment in hiring, promotion and the other points of the employment cycle.

Part of the answer will be in 'inclusive design', a school of thought in which products and environments are created for "everyone, regardless of age, gender or circumstance by working with users to remove barriers in the social, technical, political and economic processes underpinning building and design".

According to the University of Salford's Built and Human Environment Research Institute's SURFACE research team, barriers to inclusion can be:

Physical - mobility, dexterity, size and shape

Sensory - visual, aural, olfactory, haptic, kinaesthetic

Cognitive - knowledge by perception, reasoning or intuition

Psyche - a person's mental state

Ageing - acquired disabilities predominately related to sight, hearing, dexterity, mobility and cognition

Attitude barriers in society - ignorance, complacency, prejudice.

SURFACE suggests employers may want to undertake an access audit for an analysis of a structure or environment for access needs to ensure the environment is more inclusive and enjoyable for all people to use. Some of the points that an access would take into account would be the approach to the site, entrances, horizontal and vertical circulation, acoustic qualities, colour schemes, information systems, how the venue is used and how well it fulfils the function, as well as disability equality training for staff.

Inclusive design, SURFACE emphasises, is not a 'one size fits all' solution bank, and 'bolt-on afterthoughts' are not part of the process.

Conclusion

Finally, it is necessary to keep in mind the differences between the terms 'equality' and 'diversity'. Although often used interchangeably, there are distinct differences between the two, as the European Social Fund-financed Equal programme underscores:

"The focus of equal opportunities practice is fairness - developing policies and practices that tackle inequities to make sure all personnel across all sectors are treated fairly and that service users do not experience discrimination"

"Diversity strategies recognise the importance of equality but concentrate on the complex needs and rights of all sections of the community, recognising multiple disadvantage and discrimination."

A recent Audit Commission report says: "Equality is not a minority issue: it is important for everyone and directly affects the majority of the population. Women represent more than 51 per cent of the population, disabled people around 14 per cent, and black and minority ethnic communities more than 7 per cent. As the population becomes increasingly diverse, the need to address diversity and equality will become greater."

NHS appoints equality and human rights director The National Health Service offers a recent example of how it intends to try to match workforce with its customer base and ultimately solve a number of severe health issues and inequalities for its users. In October 2004, the NHS appointed an equality and human rights director to tackle discrimination in health and social care services. In leading the NHS diversity agenda, Surinder Sharma's mission will be to both bring in more racial minorities to fill high-level roles and to address health inequities ranging from high suicide rates to perinatal mortality among the health services' non-white consumers. In announcing Sharma's appointment, NHS chief executive Sir Nigel Crisp said: "The NHS workforce must reflect the community it serves. It must be trained and equipped to deliver responsive and accessible services for all. Equality and diversity need to be explicitly acknowledged and integral to all NHS corporate strategies."

Single Equality Act How many equality measures does the UK currently have to enforce? A recent count found: 35 Acts 52 Statutory Instruments 13 Codes of Practice 3 Codes of Guidance 16 European Commission Directives and Recommendations Source: Keep It Simple - The case for a new Equality Act, Justice, National AIDS Trust and Equality and Diversity Forum

EO policy example How should your equal opportunities policy read? An example could be: "(This Company) is an equal opportunities employer. This means the company will make every reasonable effort to ensure there is no discrimination or harassment on the grounds of colour, race, nationality, religion, belief, ethnic origin, disability, age, gender or marital status or sexual orientation in the way that the Company treats its employees, contractors, job applicants and visitors. "In issuing this policy, the company has three main objectives: To encourage its employees to take an active role against all forms of harassment and discrimination To deter employees from participating in harassment or discriminatory behaviour To demonstrate to all employees that they can rely on the Company's support in cases of harassment or discrimination at work. "The Company is committed to a working environment that offers equal treatment and equal opportunities for all its employees, so that every employee is able to progress to their true potential. "This policy applies to all aspects of the company's working practices and therefore applies to the recruitment and selection of employees, terms and conditions of employment, training, salary, work allocation, promotion and disciplinary procedures. "The company's recruitment, selection and promotion procedures and general policies and practices will be periodically reviewed to ensure this equal opportunities policy is being implemented. "All employees are required to follow and implement the company's equal opportunities policy and to undergo any training and development activities to ensure they can carry out their duties and responsibilities in terms of promoting, developing, implementing and reviewing the policy arrangements in the course of their work. Failure to do so may lead to disciplinary action - possibly including dismissal." Source: XpertHR, Avoiding discrimination - policies and monitoring

One stop guide to new equality law: other sections Section 1: Introduction Section 2: Disability Section 3: Religion or belief Section 4: Sexual orientation Section 5: Age Section 6: Single Equality Act Section 7: Resources and contacts