Prepare to fight
Aimed at protecting employees against direct discrimination, indirect discrimination, harassment and victimisation on the grounds of sexual orientation, religion or belief, the Employment Equality (Sexual Orientation) Regulations 2003 (SOR) comes into force on 1 December this year; the RBR the following day. These regulations also provide protection after the employment has ended. The regulations have been introduced to implement European Council Directive 2000/78/EC.
Current position
It is not unlawful to discriminate on the basis of sexual orientation, provided that the discrimination is not gender-based. Roderick Macdonald claimed he had suffered sex discrimination when forced to leave the Royal Air Force because of his homosexuality. However, as a homosexual woman would have been required to leave the RAF, there was no breach of the Sex Discrimination Act 1975 (Macdonald v Advocate General for Scotland, Pearce v Governing Body of Mayfield School [2003] UKHL 34). Transsexuals are protected under The Sex Discrimination (Gender Reassignment) Regulations 1999.
The Race Relations Act 1976 does not specifically cover religion, but outlaws discrimination based on ethnic origins. This protects Sikhs and Jewish people: they are defined by common ethnic origins and are racial groups, not just religious groups.Muslims are not deemed a separate ethnic group and are not protected (although discrimination against Muslims may be indirect race discrimination, depending on the racial/ethnic mix of a business's employees).
Discrimination on the grounds of sexual orientation, religion or belief may breach the Human Rights Act 1998, at least where public authorities are concerned, and the dismissal of employees based solely on their sexual orientation, religion or belief is likely to be unfair. Other protections include some shop workers' rights to refuse to work on Sundays.
Sexual orientation
Under the SOR it will be unlawful to discriminate against a person on the basis of their sexual orientation towards persons of the: same sex; opposite sex; or same and opposite sex. The Government's explanatory notes state that the SOR do not cover "sexual practices and preferences (eg sado-masochism and paedophilia)".
Religion or belief
'Religion or belief' is any religion, religious belief or similar philosophical belief. No list of protected religions or beliefs is given. Philosophical or political beliefs are not covered unless similar to a religious belief. Factors considered when deciding what is a religion or belief may include: collective worship; a clear belief system; profound belief reflecting way of life; or view of the world. Religion may cover druids, rastafarians, atheists, fringe religions and cults. The RBR exclude discrimination based on the religion or belief of the discriminator.
Manifestations of belief
'Manifestations' of a religion or belief will be protected. Employers may need to be flexible to accommodate cultural or religious holidays, restrictions on working hours, dietary requirements and prayer room facilities. The regulations will make issues such as dress codes, time off and office banter more difficult to deal with, particularly when balancing the workforce's competing interests.
Who will be covered?
The regulations cover discrimination in employment, contract work, certain office-holdings and partnerships; by trade organisations, bodies conferring qualifications, employment agencies, certain vocational training providers and further and higher education institutions. Police constables, barristers and advocates are covered. Job applicants and employees are protected to determine who should be offered work, terms and benefits, promotions, training, transfer and dismissal. Providing a discriminatory reference for an ex-worker, even where the relationship ends before the regulations come into force, could also be unlawful.
Those working wholly or partly in Great Britain are protected. Even those working wholly outside Great Britain could claim, provided that certain conditions are met. Multi-national businesses may face a risk of claims from those posted to intolerant countries. One way around this may be to ensure those recruited to work overseas are engaged by an overseas-registered subsidiary company with no place of business in Great Britain.
Perception, discrimination against others and liability
What happens if a heterosexual woman is not promoted because her manager believes she is a lesbian, or a Christian is dismissed because his employer believes he is a Buddhist? It will be unlawful because direct discrimination can include discrimination based on perceived sexual orientation, religion or belief, even if that perception is wrong.
Direct discrimination against someone based on the sexual orientation, religion or belief of someone else is also covered - if an employee is treated badly because he has bisexual friends, he will be protected.
Employers will be liable for employees' discriminatory acts carried out in the course of employment, unless they have taken such steps as were reasonably practicable to prevent employees from acting in a discriminatory way.
Burden of proof
To succeed on a tribunal claim, the complainant will have to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed (or is liable for) a discriminatory act. If the complainant does this, the respondent will be liable, unless it proves that it did not commit (or should not be treated as having committed) that act.
There is generally no justification defence to direct discrimination claims. However, discrimination may be lawful:
- for reasons of national security and positive action
- where being of a particular sexual orientation, religion or belief is a genuine and determining (ie, decisive) occupational requirement, it is proportionate to apply that requirement and the person to whom that requirement is applied does not meet it or the employer is not satisfied (on a reasonable basis) that that person meets it
- in religion or belief cases, where the employer has an ethos based on religion or belief the genuine occupational requirement need not be a determining factor, although it must still be proportionate to apply it (so, a Catholic school may be entitled to require Catholic religious education teachers, but not Catholic maths teachers)
- in sexual orientation cases, "organised religions" may apply a sexual orientation requirement in order to comply with their doctrines or avoid conflicting with the strongly held religious convictions of a significant number of their followers, and
- in sexual orientation cases, where benefits provided are dependent on marital status. Providing pension benefits only for a deceased employee's widow(er) will not be discriminatory, but providing the benefits to unmarried opposite sex partners and not same-sex partners will be.
Indirect discrimination will be lawful if applying the provision, criterion or practice was a proportionate means of achieving a legitimate aim.
Getting it wrong
Complaints of discrimination will normally have to be made to the tribunal and within three months beginning when the act complained of was done. Tribunals will hear complaints out of time if they consider it just and equitable to do so. Compensation, including awards for injury to feelings, can be ordered. Awards are not capped. Tribunals may also make a declaration or recommendation and award interest, but cannot order reinstatement.
Questionnaires can be served by those believing they have suffered discrimination or harassment. Adverse inferences may be drawn, if there is a deliberate failure to reply without reasonable excuse within eight weeks of a questionnaire's service or where a reply is evasive or equivocal.
Compromise agreements (COT3s where Acas is involved) will be required validly to contract out of claims.
Acas guidance
Acas has published draft guidance on the regulations, available on its website (www.acas.org.uk). This gives tips, examples and frequently asked questions and answers. The RBR guidance includes information on commonly practised religions and beliefs, with festival details. Acas's guidance is not legally binding, but can be taken into account by tribunals.
- Circulate Acas's guidance to managers and staff.
- Amend equal opportunities policies to prohibit discrimination on the grounds of sexual orientation, religion or belief.
- Train employees so they are familiar with and understand the equal opportunities policy and what is acceptable behaviour at work. This will help defend claims that an employer is liable for its employees' behaviour.
- Ensure staff understand that, if they discriminate, they could be personally liable and ordered to pay compensation to victims themselves.
- Ensure policies are enforced and those acting in breach are disciplined fairly and consistently so policies are taken seriously.
- Update diversity monitoring to include sexual orientation, religion and belief.
- Review contracts and handbooks to ensure they are not discriminatory. For example, can rights to time off for religious observance, dependants and special leave; dress codes; travel expenses; benefits for children and family be justified?
- Review recruitment advertisements, application forms and interview questions. Advertisements should be accessible to a diverse section of the public. Be flexible about interview times.
- Informal recruitment methods, such as word of mouth, may increase the risk of claims because of lack of diversity. Similar principles apply to training, transfer and promotion. Decisions should be transparent and based on objective competence-related factors.
- Review the skills required and selection criteria used in making employment decisions; if unjustified, they may discriminate indirectly.
- Avoid asking personal questions that may be viewed as discriminatory. Focus on the skills required for the job.
- Introduce proper job descriptions, performance and development reviews.
- Encourage people to contact a named person in confidence if they have concerns about discrimination and ensure that person is trained for the role.
- Ensure anyone raising concerns in good faith is not victimised.
- Hold exit interviews when staff leave, giving them the opportunity to highlight concerns about the working environment.
- Ensure references are fair and balanced.
- Consider work premises: should space be set aside for a prayer room; do catering facilities embrace a range of dietary requirements?
The regulations confer new rights but leave many issues open to question, providing a rich source for litigation. Preparation is the key to coping successfully with the changes.
