New Discrimination Regulations Part 2: Race, religion and sexual orientation
The government laid before parliament on 8 May 2003 a series of Regulations amending the Race Relation Act (RRA)1 and Disability Discrimination Act (DDA)2 and implementing the new rights not to be discriminated against on grounds of religion or belief3, and sexual orientation4.
In part one , we looked at the key concepts that span race, religion or belief and sexual orientation. This part of our guide focuses on the "strand-specific" issues in the new Regulations relating to race discrimination, religion and belief, and sexual orientation, some of which are highly controversial. In our next issue, we will focus on the changes which will be made to the DDA.
The changes to the RRA will come into force on 19 July 2003. The new rights relating to sexual orientation and religion will come into force on 1 December 2003 and 2 December 2003 respectively. The DDA amendments will take effect from 1 October 2004.
Race discrimination
The Race Relations Act 1976 (Amendment) Regulations implement the EU Race Discrimination Directive. The main changes of practical significance to the Race Relations Act made by the new Regulations were discussed in part one . They include a new definition of indirect discrimination, a freestanding definition of racial harassment, and changes to the burden of proof.
These changes are of considerable importance, but they only will affect some forms ofrace discrimination under the RRA and not others. This is because of the mismatch in the definitions of prohibited grounds of discrimination as between the new Regulations and the RRA.
Colour and nationality not covered
The RRA prohibits discrimination on grounds of "race", "colour", "ethnic or national origin", or "nationality" (defined by the Act as including "citizenship"). However, the EU Race Discrimination Directive covers only discrimination on grounds of "race" or "ethnic or national origin", not "colour" or "nationality".
This would not have presented a problem had the government introduced primary legislation to implement the Directive. There is nothing to prevent the government transposing an EU Directive by way of a statute which goes further than that which is required by the Directive itself. This is what was done, for example, when implementing the Parental Leave Directive. The Employment Relations Act (EOR 88) set out the right to parental leave and made provision for Regulations to be issued under that legislation.
However, the government decided to implement both the new discrimination Directives by Regulations made under s.2 of the European Communities Act rather than by primary legislation, which has to pass through all the stages of parliamentary consideration. Unlike primary legislation, Regulations made under the European Communities Act can go no further than is required by the EU legislation which they are intended to implement. Accordingly, the new Regulations could not, and do not, cover race discrimination complaints brought on grounds of colour or nationality. This means that the new definitions of indirect discrimination and harassment, the shift in the burden of proof and the new provisions relating to the genuine occupational requirement exception will apply only to discrimination on the ground of race, ethnic or national origin, and not to colour or nationality.
The result is that there are now two definitions of indirect discrimination which differ according to whether what is challenged relates to the impact of a practice on a person's racial group, as defined by their race or ethnic or national origins, on the one hand, or their colour or nationality on the other hand. In the latter case, the old definition, necessitating proof of a "requirement or condition" and with the old justification defence, continues to apply. The new definitions will only apply to cases of race, ethnic or national origin discrimination. As discussed in part one , these mean that a "provision, criterion or practice" can now be challenged if it has an adverse impact on a group defined by race, ethnic or national origins, and that the new and vaguer defence of whether the employer can show that that is a "proportionate means of achieving a legitimate aim" will apply.
Similarly, in a case of direct discrimination, the new burden of proof provisions will apply to cases of alleged race, ethnic or national origin discrimination, but not to cases of nationality or colour discrimination, where the less stringent standard set out in King v The Great Britain-China Centre (EOR 41) will apply.
Furthermore, the new freestanding definition of harassment will apply only to race, ethnic or national origin harassment, but not to harassment based on nationality or colour, which will continue to be judged in accordance with the previous statutory language. As discussed below, this may mean that it will be easier for an applicant to prove unlawful harassment on nationality or colour grounds than on grounds of race, ethnic or national origin.
The Commission for Racial Equality (CRE) has pointed out that it is particularly "illogical to implement the principle of equal treatment by providing for greater protection from discrimination on grounds or race and ethnic or national origin but not colour. The principal trigger for racially discriminatory behaviour is frequently colour: discriminators will seldom know the victim's ethnic or national origin and sometimes not the racial group, but 'colour' is a visibly different characteristic." Former CRE Chairman Lord Ouseley added during the House of Lords debate on the Regulations on 11 June 2003 that, in his view, "the exclusion of colour seems entirely arbitrary, as the Directive's stated purpose of combating racism and xenophobia, along with its broad reference to race and ethnic origin, very likely encompasses colour." However, Lord Filkin, for the government, said that "our understanding is that the Directive does not apply to discrimination on the grounds of colour."
Consider that in many cases, applicants claiming race discrimination will not be in a position to say whether the ground for their treatment was their "race" as opposed to their "colour", or their "national origin" rather than their "nationality", and will be advised to tick both boxes on the originating application. It is unlikely that a tribunal will be able to ascertain the precise ground for the treatment until all the evidence has been heard, meaning that a claim will often have to be judged against two different legal standards. So much for the government's commitment in its consultative document that its proposals "are designed to make equality legislation more coherent and easier to use".
Racial harassment: are the Regulations regressive?
We discussed the new freestanding definition of harassment in part one . Using the definition in the Race Relations Regulations, new s.3A of the RRA provides:
"(1) A person ('A') subjects another to harassment . . . where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of -
(a) violating that other person's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect specified in para. (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person , it should reasonably be considered as having that effect."
The controversial question is the scope of subsection (2) and, in particular, what circumstances other than that of the perception of the complainant are to be regarded as relevant to whether unwanted conduct had the effect of violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?
The most likely factual scenario here is that of racial banter and abuse. For example, a black applicant claims that the behaviour of one of her colleagues in using racially offensive terms to her, or in her presence, has violated her dignity or created a hostile working environment for her. The harasser admits using the words in question but says that he was only joking and did not mean to be offensive.
The key issue is whether the tribunal can take this absence of a discriminatory motive into account, as one of the circumstances, in whether the conduct should reasonably be considered as violating the claimant's dignity or creating a hostile working environment.
In the explanatory note to the consultative draft Race Relations Regulations, the Home Office said: "Tribunals should . . . employ a test of reasonableness, taking into account the views of the person being harassed and the motives of the alleged perpetrator." In part one , we said that this statement had not been repeated in the new explanatory memorandum. This was wrong. At that time, we had the explanatory memorandums issued by the Department of Trade and Industry (DTI) for the religion and sexual orientation Regulations, and the explanatory memorandum issued by the Department for Work and Pensions for the disability discrimination Regulations, but the race discrimination explanatory memorandum had not been made available. Because the memoranda had been made consistent in other respects, and because none of them referred to the motives of the harasser, we incorrectly assumed that this would be the case in the Home Office race discrimination memorandum.
On the contrary, the point is now made, if anything, even more strongly. This is what the Home Office memorandum says:
"The Regulation inserts a new s.3A in the 1976 Act which contains the new definition. Under subsection (1) harassment is defined as being unwanted conduct which is intended to, or which creates the effect of, violating a person's dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. This definition of harassment will be adopted across other equality areas and is in keeping with the concept that has been developed through case law.
Subsection 2 of the new section stipulates that unwanted conduct has the effect indicated above where it should reasonably be considered as having that effect, taking into account the views of the person claiming to have been harassed and the motives of the alleged perpetrator" (our emphasis).
This is both legally problematic and misguided from a policy standpoint. One can see how a tribunal can take an objective view as to whether particular conduct could "reasonably" be considered as racially offensive. That involves an evaluation of the behaviour concerned, from the reasonable standpoint of the person experiencing it. It should not entail the tribunal deciding how they themselves would regard the behaviour. As Lord Ouseley has noted, there is a danger that a "reasonable perspective" will refer to "the traditional standard which is characteristic of the dominant majority population, that of white middle-aged males", whose perceptions will "differ from those of people who are often most affected by harassment".
It is not at all clear, however, how the motive of the harasser is a relevant ingredient in the assessment of whether unwanted conduct had the effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. That it emerges that the harasser did not mean to be offensive does not in any way reduce the harm caused to the recipient of the offensive behaviour.
This proposition is reinforced by the language of the Regulation itself. It distinguishes between harassment having the "purpose" of violating dignity or creating an offensive environment, and harassment which has that "effect". Subsection 2 relates only to harassment which does not have such a purpose. There is no meaningful distinction apparent here between "purpose" and "motive". Therefore, subsection 2 is, by definition, confined to cases where the harasser did not have a discriminatory motive. Accordingly, it would be inappropriate to further take that into account in construing subsection 2.
The government claims that the Regulations "reflect the judgment of the Employment Appeal Tribunal in the case of Driskel v Peninsula Business Services, decided in 2000" (EOR 91, [2000] IRLR 151). In Driskel, the EAT said that "amongst the factors to be considered are the applicant's subjective perception of that which is the subject of complaint, and the understanding, motive and intention of the alleged discriminator". This comment was made in the context of overruling a tribunal which found that a remark of a sexual nature made by a male department head to a woman did not amount to unlawful sexual harassment. The EAT's holding in the case is that: "The tribunal's finding that the remark was flippant and was not meant to be taken seriously effectively missed the point. What was relevant was that by the remark, the department head was undermining the applicant's dignity as a woman when, as a heterosexual, he would never similarly have treated a man." Thus, Driskel is certainly not an authority for the proposition that the fact that a harasser did not mean to be offensive should be regarded as an important ingredient of whether the conduct was unlawful.
It is strongly arguable, in my view, that contrary to the Home Office advice, an interpretation of s.3A2(2) that allows a lack of a discriminatory motive to be a defence would be regressive and contrary to the Race Discrimination Directive, Article 6(2) of which provides: "The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by member states in the fields covered by this Directive." Prior to the new Regulations coming into force, a racial harassment complainant merely has to establish that they have been subjected to a "detriment". Regulation 52 amends the definitions section in s.78 of theRRA by providing that "'detriment' does not include conduct of a nature such as to constitute harassment under s.3A". Thus, someone experiencing racial abuse will not be able to argue that they have been subjected to an unlawful detriment, but will now have to establish that their case satisfies the ingredients of the definition of harassment. For the reasons given above, it is strongly arguable that this means that it will be more difficult for some applicants subjected to racial abuse to establish a case of unlawful discrimination than it is under current law.
Genuine occupational requirements
The RRA currently has a specific list of narrowly-drawn "genuine occupational qualifications". These are to be replaced by the concept of "genuine occupational requirements" (GOR), but only in so far as discrimination on grounds of race, ethnic or national origins is concerned. The Regulations provide for a new s.4A, which states:
"(1) In relation to discrimination on grounds of race or ethnic or national origins . . .
(a) s.4(1)(a) or (c) does not apply to any employment; and
(b) s.4(2)(b) does not apply to promotion or transfer to, or training for, any employment; and
(c) s.4(2)(c) does not apply to dismissal from any employment,
where subsection (2) applies.
(2) This subsection applies only where, having regard to the nature of the employment or the context in which it is carried out -
(a) being of a particular race or particular ethnic or national origins is a genuine and determining occupational requirement; and
(b) it is proportionate to apply that requirement in the particular case; and
(c) either -
(i) the person to whom the requirement is applied does not meet it; or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it."
Note that in order to satisfy this exception, being of a particular race etc must not only be a genuine occupational requirement for a particular post, it must also be a "determining" requirement for that post - ie it must be decisive. Even then, it must also be proportionate to apply the requirement.
There were several changes made to the consultative draft Regulations. New s.4A(2)(c) allows an employer to establish a GOR exception on the basis of a reasonable perception about a person's ability to meet a particular requirement. New s.4A(1)(c) allows a GOR to operate in respect of a dismissal. This is not possible under the existing exceptions for genuine occupational qualifications in s.5 of the RRA, and thus also has been challenged as regressive.
Religion or belief
The general structure of the draft Employment Equality (Religion or Belief) Regulations 2003 is directly parallel to the SDA and RRA. Direct and indirect discrimination in employment on grounds of religion or belief, by way of victimisation or by way of harassment is prohibited. The Regulations extend to discrimination against contract workers and by qualifications bodies. Employers are made legally liable for discrimination by their employees, and enforcement proceedings can be brought in an employment tribunal.
The government's Regulatory Impact Assessment estimates that the new Regulations will produce some 1,000 employment tribunal cases per year.
Meaning of "religion" and "belief"
The Framework Employment Directive contains no definition of "religion" or "belief". The government has resisted calls to provide a detailed definition or set out an exhaustive list of groups that should be regarded as religions. The Regulations merely specify that "religion or belief" means:"any religion, religious belief, or similar philosophical belief".
So far as religions are concerned, a definition which refers to "any religion" means that it is likely to cover fringe religions and membership of cults. There is unlikely to be any need for Scientologists, Moonies or Rastafarians, for example, to bring proceedings to establish that their members fall within the scope of the protection offered by this definition.
This raises some potential practical problems for employers. There is no possibility of justifying direct discrimination on grounds of religion or belief. Thus, an employer who discriminates against someone because they belong to a fringe or cult religion which has views which the employer finds abhorrent would be acting unlawfully.
Moreover, the line between direct and indirect discrimination on grounds of religious belief, as discussed in more detail below, may not be clear-cut. Most large employers will be familiar with the tenets of major religions such as Islam, Christianity and Judaism, and what adjustments at work adherents of those religions may seek. However, the wide scope of the definition of religion means that employers may have to make decisions about requests relating to issues such as working hours, holidays, dress etc from members of groups which are much less familiar to them.
"Religious belief" is likely to cover manifestations of a person's religion as well as the fact of belonging to the religion itself. An employer who discriminates against an observant Muslim because he refuses to work on Friday is unlikely to be able to defend its position by arguing that the discrimination was not on grounds of being a Muslim, but merely because of the refusal to work Fridays. A tribunal would be likely to find that not working on Fridays is part of a Muslim's religious beliefs.
What is meant by "similar philosophical belief"? The government's explanatory memorandum says that: "This does not include any philosophical or political belief unless that belief is similar to a religious belief." It adds: "The courts and tribunals may consider a number of factors when deciding what is a 'religion or belief' (eg collective worship, clear belief system, profound belief affecting way of life or view of the world)."
It is clear that these provisions are not intended to provide protection against discrimination on grounds of "political opinion", in contrast to the position in Northern Ireland. They will not protect an employee from being discriminated against on grounds of membership of the Labour or Conservative Party, for example. Some political beliefs, however, may be similar to religious beliefs, at least in the way that they are practiced by particular individuals. Pacifism, for example, might be said to involve belief systems affecting the believer's world view, and an employee who is harassed for opposing the war against Iraq because of his or her pacifist beliefs might be able to bring a claim that they were discriminated against on grounds of their belief. What about fascism? Some trade unions would like to be able to expel members who express fascist beliefs, but will that be regarded as religious discrimination?
Vegetarianism is arguably a "belief", and if an employer does not make vegetarian meals available in the canteen after 2 December, it may be risking a tribunal claim.
The definition refers to discrimination on grounds of religion or belief and it must be questionable whether this covers an absence of belief, unless that takes the form of a positive philosophical belief such as atheism, agnosticism or humanism. Even for someone who can establish such a philosophical belief, this is unlikely to assist because, as a matter of practice, the grounds for the discriminatory treatment are much more likely to be that the person concerned is not a member of a particular religion rather than that they are, for example, an agnostic. As discussed below, this may be a major loophole in the Regulations.
Direct discrimination
The Regulations define direct discrimination as follows:
"3(1) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') If -
(a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons."
In our commentary on the draft Regulations, we pointed out that the phrasing of this appeared to cover not only less favourable treatment of B by A because of B's religion, but also less favourable treatment of B by A because of A's religion. That would have allowed a claim of religious discrimination to be brought by someone discriminated against because something connected with their gender, orientation or ethnic origin was in conflict with the discriminator's own religious beliefs.
However, the government inserted a new subclause into reg. 3 of the Religion or Belief Regulations so as to provide that:
"(2) The reference in para. (1)(a) to religion or belief does not include A's religion or belief."
Something along the lines of this change was probably inevitable once the government decided to allow discrimination on grounds of sexual orientation for the purposes of an organised religion (see below), but the result is that tribunals will have little guidance as to how to approach a conflict of rights.
The classic scenario will be the religious employee who makes homophobic remarks to a gay or lesbian colleague. The employer will be liable to the gay man or lesbian for sexual orientation discrimination if it does not take steps to curb the remarks, but the person making the remarks may claim that they are merely expressing beliefs which are a tenet of their religion and that for the employer to take steps against them would amount to discrimination against them on grounds of their religion or belief. Tribunals are likely to resolve this clash of rights, where possible, in favour of curtailing the expression of the homophobic views, on the basis that the underlying aim of the Framework Directive is that all employees should have the right to work with dignity. Consistent with that, tribunals should take the same approach to anti-religious views expressed by gay men or lesbians.
Absence of belief
We noted above that the definition of religion or belief does not expressly cover an absence of belief or religion. This was one of the key issues probed during the House of Lords debate on the Regulations on 17 June. The government spokesman, Lord Sainsbury, said that: "It is clearly the intention that where people have strongly held views, which include humanism, or atheism or agnosticism, they would be covered under the phrase 'or similar philosophical belief'."
This is not a complete answer to the point. Many people do not believe, without having strongly held agnostic or humanist views. Besides which, as pointed out above, discrimination in this context is not usually on grounds that someone is a humanist etc, but is because they do not share the beliefs of the discriminator. The discriminator in such a case will respond to a claim by saying that "it makes no difference to me whether they are humanist or Buddhist or Druid, I am treating them differently because they do not believe what I believe."
In that context, reg. 3 (2), by excluding the religion or belief of the alleged discriminator from whether there has been discrimination, makes it less likely that someone who has been discriminated against because they do not belong to a particular religion will be able to succeed under the Regulations. Indeed, there is at least the possibility that the addition of reg. 3(2) will undermine the effectiveness of the Regulations in a major way. Much religious discrimination takes the guise of discrimination in favour of co-religionists or those who share the discriminator's belief, rather than being against those of a particular religion. Is someone who is turned down for a post because, unlike the employer, they are not Christian (or Muslim or Jewish as the case may be) discriminated against on grounds of their religion or belief? The Regulations contain special provisions allowing positive discrimination in the form of genuine occupational requirements, so a purposive construction would find that someone discriminated against because of their absence of belief would fall within the scope of the Regulations unless a GOR is established. But the government has not made the likelihood of such a purposive construction easier by adding in reg. 3(2).
No justification for direct discrimination
The definition of direct discrimination on grounds of religion or belief, like the definition of direct race, sex or sexual orientation discrimination, does not allow for exceptions, save for the case of a genuine occupational requirement. Direct discrimination cannot be justified. This might result in some difficult legal issues as to where the line is to be drawn between direct and indirect discrimination on grounds of "religious belief". If an employer refuses to employ a Muslim woman for a particular post because she regards it as necessary, because of her religious beliefs, to fully cover her face, is that direct or indirect discrimination? Employers will be very much hoping that they will have the opportunity to justify such discrimination as proportionate in the circumstances of the particular case.
Take the case of a Seventh Day Adventist who is asked by their employer to work on Saturday and is dismissed when they refuse. This is not direct discrimination on grounds of "religion", but a strong case could be made that it is direct discrimination on grounds of "religious belief". The claimant could argue that not working on the sabbath was the essence of their religious belief, so that if they had been treated less favourably because of their refusal to work on their sabbath, that must be regarded as direct discrimination on grounds of religious belief and automatically unlawful. Yet cases of this nature can also be regarded as indirect discrimination - application of a racially non-discriminatory rule relating to Saturday working that has an adverse impact on Seventh Day Adventists - and thus capable of being justified by the employer. They have been so treated under the comparable provisions of the Northern Ireland fair employment legislation.
Perceived discrimination
The explanatory memorandum makes the point that direct discrimination "on grounds of religion or belief" can also include discrimination based on A's perception of B's religion or belief, whether the perception is right or wrong. "This means that people will be able to bring a claim even if the discrimination was based on (incorrect) assumptions about their religion or belief. Nor will they be required to disclose their religion or belief in bringing a claim - it will be sufficient that they have suffered a disadvantage because of the assumptions made about their religion or belief."
Harassment
The principal group to be brought within the scope of protection of discrimination law by the religious discrimination provisions will be Muslims. Unlike groups such as Sikhs and Jews who have been protected under the RRA as ethnic groups, people discriminated against at work because they are Muslims, or because of manifestations of their Islamic belief, have not been able to bring claims. This will change in December and employers will be liable not just for direct discrimination against Muslims, but potentially also for indirect discrimination, such as in respect of dress codes, time off for religious observance, and failure to provide appropriate food in the staff canteen.
Harassment on grounds of religion or belief is made specifically unlawful, and this is particularly relevant to combat the stain of Islamophobia. The definition of unlawful harassment on grounds of religion or belief is directly parallel to that for racial harassment, as discussed above.
The new law relating to religious harassment will also be relevant in workplaces where football club allegiances serve as a proxy for sectarian rivalry. This is particularly the case in the West of Scotland between Rangers and Celtic supporters, and in Liverpool as between Liverpool and Everton. In Northern Ireland, where support for Rangers and Celtic divides on sectarian lines also, it has long been acknowledged that the display in the workplace of football emblems that have a sectarian significance can create an offensive working environment. Thus, in the 1995 case of Brennan v Short Brothers, the Fair Employment Tribunal said: "Regalia and apparel, such as Glasgow Rangers and Glasgow Celtic shirts and scarves, give clear sectarian messages in Northern Ireland. If football shirts have a sectarian significance, they are not simply football shirts, regardless of the intention with which they are worn. It has to be emphasised as often as is necessary that anything which identifies community allegiance needs justification in the workplace."
Practical issues for employers
In addition to the need to generally audit practices and procedures to ensure that they accord with the new rights, the Religion or Belief Regulations raise a great many specific practical issues for employers. Some of these, such as harassment, have already been discussed. The Regulatory Impact Assessment for the Regulations points out: "Under the new legislation, and in line with best practice, employers may need to accommodate a wide variety of religious and cultural needs of workers, such as different dietary requirements and prayer room facilities. Employers may also need to be flexible in order to accommodate cultural or religious holidays and restrictions on hours of work. People should not be discriminated against in recruitment decisions if they cannot work on
particular days of the week; particular times of the day; or in particular areas of a business (for example the meat or alcohol section of a supermarket) unless this can be objectively justified."
There are other, more difficult issues. If a company has a shutdown at Christmas, are non-Christian employees entitled to extra holiday in lieu? If a firm has an employee who objects to blaspheming, will it be unlawful religious discrimination not to take steps to stop his work colleagues taking the name of the Lord in vain? Conversely, do employers have to allow religious proselytising in the workplace? When will it be lawful to require employees to wear a uniform which conflicts with their religious beliefs? Answers to questions like these are only likely to emerge from the case law.
Genuine occupational requirement
The Framework Employment Directive contains a derogation allowing differences of treatment based on a person's religion or belief where this is in respect of employment by "churches or other public or private organisations the ethos of which is based on religion or belief", and this is a "genuine, legitimate and justified occupational requirement having regard to the organisation's ethos". The Directive adds that: "Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos."
The government has decided to implement this derogation fairly narrowly. Thus reg. 7(2) states that the provisions relating to discrimination in recruitment, promotion, transfer, training or dismissaldo not apply:
"where, having regard to the nature of the employment or the context in which it is carried out -
(a) being of a particular religion or belief is a genuine and determining occupational requirement;
(b) it is proportionate to apply that requirement in the particular case; and
(c) either -
(i) the person to whom the requirement is applied does not meet it; or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it
and this paragraph applies whether or not the employer has an ethos based on religion or belief."
Regulation 7(3) goes on to further provide:
"This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out -
(a) being of a particular religion or belief is a genuine occupational requirement for the job; and
(b) it is proportionate to apply that requirement in the particular case; and
(c) either -
(i) the person to whom the requirement is applied does not meet it; or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it."
The distinction that is drawn by the Regulations is between "ethos-based" organisations and others. In both cases, the employer must show that being of a particular religion or belief is a genuine occupational requirement for the job, and that it is proportionate to apply that requirement in the particular case. In the case of an ethos-based employer, however, it is not necessary to also show that being of particular religion or belief is a "determining" occupational requirement. As the explanatory memorandum puts it: "This means that the religious organisations GOR is slightly broader than the general GOR, because the employer is not required to show that religion or belief is a determining (ie decisive) factor in selection for the post in question. However, the employer must still show that the religion or belief is a requirement, and not just one of many relevant factors."
The onus will be on the employer to show that it has an ethos based on religion or belief and that, having regard to that ethos, being of a particular religion or belief is a genuine occupational requirement for the job.
This still leaves open questions as to what organisations will be regarded as ethos-based, and when it will be considered proportionate to apply a genuine occupational requirement. The criteria of an employer having "an ethos based on religion or belief" is clearly broader than that of an "organised religion" as used in the Sexual Orientation Regulations (see below). In addition to religious organisations as such, the definition is likely to extend to church-run schools, hospitals and care homes. It might also, in certain cases, extend to "Christian" or "Jewish" or "Muslim" law firms or medical practices. What about organisations who have an ethos based on belief? Would this allow, for example, an abortion advisory service to exclude opponents of abortion from certain posts? What of the vegan restaurant or the pacifist book shop?
The onus is on the employer in the case of either limb of reg. 7 to establish that applying a genuine occupational requirement is "proportionate" as regards a particular job. This is likely to be interpreted as meaning that religious exclusions apply only to particular posts where the religion or belief is relevant. Thus, it is unlikely - although not inconceivable - that a Roman Catholic school would be able to insist that its cleaners are Roman Catholic.
Regulation 7(3)(c) was added following the consultation exercise. It parallels provisions in the Race and Sexual Orientation Regulations. In the context of religious discrimination, it might permit an employer with a Roman Catholic ethos, for example, to reject an applicant who was divorced on the basis of a reasonable belief that they were not Catholic, even though the individual concerned might continue to define themselves as a Catholic.
Sexual orientation discrimination
The general structure of the draft Employment Equality (Sexual Orientation) Regulations 2003 is also directly parallel to the SDA and RRA. Direct and indirect discrimination in employment on grounds of sexual orientation, by way of victimisation or by way of harassment, is prohibited. The Regulations extend to discrimination against contract workers and by qualifications bodies. Employers are made legally liable for discrimination by their employees and enforcement proceedings can be brought in an employment tribunal.
The government's Regulatory Impact Analysis estimates that there are between 1.3 and 1.9 million lesbians, gay men and bisexual people in employment who will be covered by the new Regulations.
Meaning of "sexual orientation"
The Framework Employment Directive contains no definition of "sexual orientation". The definition adopted in the Regulations avoids the term "homosexual". Instead, the definition reads:
" 'sexual orientation' means an orientation towards -
(a) persons of the same sex;
(b) persons of the opposite sex; or
(c) persons of the same sex and of the opposite sex."
There are important questions about the scope of this definition. During the consultation, there was discussion as to whether the new right would protect minority sexual practices. The explanatory memorandum says that the definition "does not extend to sexual practices and preferences (eg sadomasochism and paedophilia)". This is hardly surprising.
This formulation, however, makes it unclear whether a distinction is being drawn between a person's sexual "orientation" and their sexual "behaviour" or "practices", which may be the manifestation of their orientation. (A similar issue might have arisen in the context of religion, but for the fact that the definition there refers not only to "religion" but also to "religious belief".)
In our guide to the consultative draft Regulations (EOR 113), we posed questions such whether an employer will be able to say to a lesbian: "I don't care what you do in the privacy of your bedroom, but please don't walk around my store at lunchtime in your company uniform holding hands with your partner because the customers don't like it"? Will an employer be able to say that it is happy to employ gay men or women, and does so, as long as they do not look obviously gay? There is nothing either in the final explanatory memorandum or in the House of Lords debate on the Regulations to answer these kind of key practical questions. Indeed, as discussed below, the debate in the House of Lords focused entirely on the exclusion relating to employment for the purpose of an organised religion.
Direct discrimination
The definition of direct discrimination in respect of sexual orientation provides:
"For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -
(a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons . . ."
Unlike the comparable provisions in respect of religious discrimination, nothing has been added to the definition that specifies that it is only the claimant's sexual orientation that is relevant. Accordingly, on the principle that parliament must have intended to distinguish between the two Regulations in this respect, the definition of direct discrimination in these Regulations must be taken as covering discrimination by a person because of their own sexual orientation. For example, it would encompass harassment of another man by A, regardless of the sexual orientation of the man harassed. This is not reflected in the explanatory memorandum, which suggests only that "direct discrimination occurs where, because of B's sexual orientation, A treats B less favourably than he treats or would treat other persons."
Harassment
The freestanding prohibition of harassment on grounds of sexual orientation is one of the areas of the new Regulations likely to have the most impact.
When the new Regulations come into force in December, someone who is harassed because of their sexual orientation will no longer have to try to show that someone of the same sexual orientation but a different gender would have been treated more favourably. It will be sufficient for them to establish that someone of a different sexual orientation would not have been harassed.
Harassment on grounds of sexual orientation poses particular problems for employers because the organisation is less likely to be aware of the recipient's sexual orientation than of their sex or race or disability. Such lack of knowledge, however, will not relieve an employer of responsibility for the harassment, since ordinary principles of legal liability apply.
As reg. 22(1) puts it: "Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."
Perceived discrimination
As with religious discrimination, discrimination on grounds of sexual orientation can also include discrimination based on perceived sexual orientation, whether the perception is right or wrong. The explanatory memorandum says: "This means that people will be able to bring a claim even if the discrimination was based on (incorrect) assumptions about their sexual orientation. Nor will they be required to disclose their sexual orientation in bringing a claim - it will be sufficient that they have suffered a disadvantage because of the assumptions made about their orientation."
Thus, this provision will cover someone discriminated against because they "look gay" or "act gay", even where they are not.
Genuine occupational requirement
The genuine occupational requirement exceptions to the right not to be discriminated against on grounds of sexual orientation were altered between the draft Regulations and the final version.
They allow discrimination in two circumstances. First, reg. 7(2) establishes a general GOR. This allows employers to discriminate:
"Where, having regard to the nature of the employment or the context in which it is carried out -
(a) being of a particular sexual orientation is a genuine and determining occupational requirement;
(b) it is proportionate to apply that requirement in the particular case; and
(c) either -
(i) the person to whom the requirement is applied does not meet it; or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it
and this paragraph applies whether or not the employment is for the purposes of an organised religion."
This exception uses parallel wording to that relating to religious discrimination, and was foreshadowed in the consultative Regulations.
The controversy has been generated by the addition of a broader exclusion where the employment is "for the purposes of an organised religion". Regulation 7(3) provides:
"This paragraph applies where -
(a) the employment is for the purposes of an organised religion;
(b) the employer applies a requirement related to sexual orientation -
(i) so as to comply with the doctrines of the religion; or
(ii) because of the nature of the employment and the context
in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and
(c) either -
(i) the person to whom the requirement is applied does not meet it; or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it."
Doubts were cast by the Parliamentary Joint Committee on Statutory Instruments on whether this Regulation went further than permitted by the Framework Employment Directive. In their 21st report, having heard evidence from DTI officials, the Committee expressed concern that reg. 7(3) "might permit difference of treatment based on a characteristic related to sexual orientation where the characteristic could not be said to be a 'genuine and determining occupational requirement' which was proportionate, as envisaged by the Directive."
This was followed by a lengthy debate in the House of Lords on 17 June on a motion by Lord Lester to withdraw the Regulations, which was replied to on behalf of the government by Lord Sainsbury. Lord Sainsbury's remarks explaining the rationale behind reg. 7(3) can be taken into account where a court or tribunal regards the language of the Regulation as ambiguous, in accordance with the principle laid down in Pepper v Hart (IRLR 33).
From the standpoint of EOR readers, the most important points made by Lord Sainsbury concerned the intended scope of reg. 7(3)(a), and what jobs are to be covered by the phrase "for the purposes of an organised religion". He said this: "When drafting reg. 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion . . . It is quite clear that reg. 7(3) does not apply to all jobs in a particular type of organisation. On the contrary, employers must be prepared to justify any requirement related to sexual orientation on a case-by-case basis. The rule only applies to employment which is for the purposes of 'organised religion', not religious organisations. There is a clear distinction in meaning between the two. A religious organisation could be any organisation with an ethos based on religion or belief. However, employment for the purposes of an organised religion clearly means a job, such as a minister of religion, involving work for a church, synagogue or mosque."
He went on to point out that "a care home run by a religious foundation may qualify as a religious organisation . . . but I believe it would be very difficult under these Regulations to show that the job of a nurse in a care home exists 'for the purposes of an organised religion'. I would say exactly the same in relation to a teacher at a faith school. Such jobs exist for the purposes of health care and education."
Lord Sainsbury then dealt with what has to be established for reg. 7(3)(b) to be satisfied: "Even if an employer can show that the job exists for the purposes of an organised religion, and that is a significant hurdle, he may only apply a requirement related to sexual orientation if one of two further tests are met. In the first test the requirement must be applied to comply with the doctrines of the religion. We do not believe that that test would be met in relation to many posts. It would be very difficult for a church to argue that a requirement related to sexual orientation applied to a post of cleaner, gardener or secretary. Religious doctrine rarely has much to say about posts such as those.
"If the first test is not met, what about the second? There the church will have to show that the requirement related to sexual orientation is necessary, 'because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers . . .' I shall dispel one or two myths. It is neither sufficient for the requirement to be imposed simply because of the nature of the work and the context in which it is carried out, nor may the requirement be imposed simply because of the religious convictions of the followers of the faith. Both elements have to be satisfied before the second test can be met. They are strict tests and will be met in very few cases."
Thus, even if one agrees with Lord Alli's comment during the debate: "I cannot accept that it is right for an organised religion to dictate that those in its employment should or should not be of a particular sexuality - no more than than that they should or should not be of a particular race," it would seem that this GOR has considerably less potential scope than had been feared.
Exception for benefits dependent on marital status
The government has taken the view that, notwithstanding the Framework Employment Directive, benefits which are aimed exclusively at married couples will continue to be allowable. Regulation 25 provides:
"Nothing in Parts II or III shall render unlawful anything which prevents or restricts access to a benefit by reference to marital status."
The explanatory memorandum says: "This means that rules based on marriage cannot be challenged as indirectly discriminatory by reason of the fact that it is unlawful for same-sex partners to marry in the UK. So, for example, if survivor benefits in an employer's occupational pension scheme are only available to the widow(er) of a deceased employee, this will not be discrimination on grounds of sexual orientation under the Regulations."
In Implementing the Employment and Race Directives , we questioned whether this is permitted by the Directive and, in particular, whether this exclusion can be based merely on Recital 22, which says: "This Directive is without prejudice to national laws on marital status and the benefits dependent thereon."
The government has elaborated upon its reasoning in the explanatory memorandum: "Regulation 25 reflects the fact that treatment by reference to marital status is outside the scope of the Directive. Article 3 of the Directive states that it applies 'only within the limits of the areas of competence conferred on the Community'. Distinctions between the rights of married and unmarried people are outside the scope of Community competence, because marriage is a family law concept which is regulated by the laws of the member states."
This is an extraordinary assertion, given that both Equal Treatment Directive 76/207 and the revised Equal Treatment Directive 2002/73 state in terms that "the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status" and our own SDA, implementing that Directive, expressly prohibits a distinction in favour of unmarried people compared with those who are married.
Benefits aimed at married couples, on the face of it, constitute indirect discrimination against lesbian and gay couples. To the extent that Recital 22 can be relied upon, the "benefits" referred to are not those dependent on "marital status" generally, but rather those dependent on "national laws on marital status". On that basis, only exceptions for social security schemes, such as widow's benefit, should be regarded as falling within the Recital. In contrast, occupational pension schemes are governed by their own rules and not by national laws on marital status. Regulation 25 is likely to be challenged as incorrect implementation of the Directive.
Be that as it may, what is clear is that the Regulations will require changes to schemes which allow survivor benefits to unmarried opposite sex partners, but not to same-sex partners. The Regulatory Impact Assessment estimates that between 122,000 to 171,000 employees in the private sector are discriminated against in this way with respect to pensions.
Other terms and conditions
The Regulatory Impact Assessment also identifies other terms and conditions which may be available to heterosexual employees, but not to lesbians, gay men and bisexual employees. "These may include time off for dependants, special leave or travel expenses paid." In that connection, some employers currently give preference to parents in holiday allocation, or provide certain benefits only to employees with children. These could be challenged as being indirectly discriminatory.
The Regulatory Impact Assessment also points to discrimination in the recruitment process. "Currently, recruiters might ask pointed questions, for example, about an applicant's marital status such as whether they have a wife/girlfriend (husband/boyfriend). Some employers may encourage family involvement in work-related activities."
1 Race Relations Act 1976 (Amendment) Regulations 2003
2 Disability Discrimination Act 1995 (Amendment) Regulations 2003
3 Employment Equality (Religion or Belief) Regulations 2003
4 Employment Equality (Sexual Orientation) Regulations 2003
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For each set of Regulations, the government has produced a Regulatory Impact Assessment. This includes an estimate of the time employers will have to take to read guidance produced by the DTI on the new legislation, and to seek advice. As regards religious discrimination, the Regulatory Impact Assessment says that: "In total, small employers, those with less than 50 employees, may be expected to spend about 30 minutes in total reading and understanding the guidance on religion or belief. Medium to large employers, those with 50 or more employees, will be expected to take more time, about an hour, in reading and considering the guidance, as some of them may produce and disseminate guidance for personnel departments and other staff." The same calculation is made in respect of sexual orientation discrimination. As for the changes to race discrimination law, the government estimates this will take up 15 minutes of employer time. The total government estimate for employers to familiarise themselves with the new Regulations, therefore, appears to be 11/4 hours, though doubtless some organisations can reduce this via speed-reading. For those that would prefer to devote more time to this important new legislation, hear expert assessment, and have the opportunity to put questions, IRS Training will be running a conference on the New Discrimination Regulations on Thursday 16 October, in central London. To reserve a place or for further
details, call the booking hotline on 020 7347
3573. |
