New Acas equality guidance
Acas has published two guidance documents1 intended to assist employers and their staff in putting into practice the Employment Equality (Religion and Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003, which come into force on 1 and 2 December 2003 respectively. The Regulations have already been published in draft form and we looked at their wording in detail in our guidance note Unlawful discrimination -a new era .
The Acas guidance documents summarise and explain the Regulations and the business case for them. More interestingly, they give workplace examples of potentially discriminatory behaviour, suggestions for good practice and also answers to some frequently asked questions. Both documents contain an express general reminder to employers that however large or small the organisation, it is good practice to have an equality policy, to train all staff on its application and to update everyone on a regular basis; and recruitment, promotion and training should always be seen to be open to all.
Religion or belief
"Religion or belief" is not explicitly defined in the Regulations, having been left to the decision of employment tribunals. The Acas guidance document contains (in appendix 2) a list of some commonly practised religions, detailing festival days and various customs regarding food, clothes and bereavement. These are: Baha'i, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Parsi (Zoroastrianism), Rastafarianism, Sikhism and "other ancient religions" including Druidry, Paganism and Wicca. The document also provides a reminder that the scope of the Regulations extends beyond these religions to include, for example, humanism.
Acas suggests that there may be circumstances in which positive action could be appropriate, either to train other staff in work that historically has been the preserve of individuals of a particular religion, or to encourage applicants from minority religions (while making it clear that selection will be on merit alone).
Sunday working
Acas reminds employers that the right for those working in the retail or betting trades to opt out of Sunday working under s.45 of the Employment Rights Act 1996 ("the ERA") remains unchanged by these Regulations.
Religious observance at work
The Regulations do not say that employers must provide time and facilities for religious observance in the workplace. However, the Acas guidance says that employers should consider whether their policies, rules and procedures indirectly discriminate against staff of particular religions and, if so, whether reasonable changes could be made. Dress codes and requests for prayer rooms and time off for religious holidays are all discussed.
Sexual orientation
Sexual matters being, by their nature, private and confidential, Acas considers that the issue is likely to arise in most workplaces only if, for example, same-sex partners are treated differently from heterosexual partners. Under the terms of s.57A of the ERA (as amended by the Employment Relations Act 1999), employees (but not all workers, and not those who are self-employed or members of the police service or armed forces) are entitled to unpaid leave to deal with unexpected or sudden problems concerning a dependant or close family member, including a same-sex partner. Employers should consider whether any of their contractual policies or procedures unwittingly discriminate on the grounds of sexual orientation, the document says. However, when it comes to the provision of benefits such as insurance or private healthcare for married partners or spouses only, these do not have to be extended to cover unmarried partners.
Any harassment based on sexual orientation is covered by the Regulations even if it involves an inaccurate perception of or speculation about a worker's sexual orientation. And it is not necessarily the victim's own sexuality that is involved: a worker may complain, for example, if jokes are made about his or her gay son or daughter.
Gender reassignment is a separate and unrelated issue, and is covered by the Sex Discrimination (Gender Reassignment) Regulations 1999.
Staff monitoring
Acas confirms that there is no legal requirement to keep information on the make-up of staff groups, other than in the public sector, where racial monitoring is a statutory requirement (Race Relations Act 1976 (Statutory Duties) Order 2001). It is suggested, however, that such monitoring is good practice. Employers are reminded that information relating to religion or belief, or sexual orientation will be "sensitive data" for the purposes of the Data Protection Act 1998 and must be treated accordingly. Even if no monitoring is undertaken, Acas suggests that employers should make it clear that such harassment on grounds of religion or belief, or sexual orientation is a disciplinary issue, and should support victims.
In the case of "religion or belief", Acas suggests that, where this is not included in any monitoring process, employers might instead include a question on religion or belief in any staff attitude surveys.
In the case of sexual orientation, Acas considers it unlikely that staff will volunteer information on this issue, and suggests that employers should instead monitor disciplinary and grievance procedures as a means of alerting management to homophobic attitudes within the organisation.
"Genuine occupational requirement"
Both documents state that an employer that wishes to avail itself of the "GOR" defence, must:
What if, on the grounds of religion, some staff refuse to work with gay or lesbian colleagues? Acas's answer, unsurprisingly, is that everyone has the right to be treated with dignity and respect in the workplace, and employers should insist that all staff treat each other professionally.
1. Religion or belief in the workplace and Sexual orientation and the workplace, November 2003, available at www.acas.org.uk/publications/pdf/guide_religionB.pdf and www.acas.org.uk/publications/pdf/guide_sexualO.pdf.
