It is important for HR professionals to be aware of the changes, as the trend for awards in discrimination cases continues to rise. Figures published by the Equal Opportunities Commission at the beginning of the year indicated that the annual pay out to victims of discrimination had risen by 38% in 2000, when compared with 1999.
The proposed changes result from a package of European directives requiring legislation to prevent discrimination on the grounds of sexual orientation (by 17 November 2003), religion or belief (by 27 November 2003) and age (by 27 November 2006). The Government sets out its approach to implementing these changes in a document called Towards Equality and Diversity.
The first stage of the consultation process on these proposals closes at the end of March. Those dealing with sexual orientation and religion are expected to be drawn up in a few months time but the Government intends to spend additional time consulting, in particular, on the introduction of age discrimination laws. Further details about the consultation process and timetable are obtainable on www.dti.gov.uk/er/equality.
There will be also be amendments to the current Race Relations Act 1976 and the Disability Discrimination Act 1995. Currently, small employers (those employing fewer than 15 employees) are exempted from disability discrimination legislation. This will no longer be the case.
Some provisions will not change at all. Employers will still be able to justify a difference in treatment (such as recruiting a young or older person) where there is a genuine and determining occupational requirement but the Government expects them to make limited use of this flexibility.
Much of the debate about the new legislation will centre on definitions, in particular of direct discrimination, indirect discrimination and harassment.
The Government does not intend to change the definition of direct discrimination in the Race Relations Act which states that employers commit direct discrimination on racial grounds when they treat an employee less favourably than they would treat another employee in comparable circumstances. This definition will also be applied to the new legislation on discrimination on grounds of sexual orientation, religion or belief and age.
But indirect discrimination is more complicated. If, for example, an employer demands a certain level of language skills that may put a particular group of people at a disadvantage when compared to others, the employer has to be able to justify this requirement. If not, it is indirect discrimination.
The Government will be looking at whether this approach, with some minor adjustments, should be retained in the new legislation on age, sexual orientation and religion.
When it comes to harassment, the EU directive requires proof that not only was the conduct unwanted but also that it was intended to create an intimidating, hostile, degrading, humiliating or offensive environment for the employee, or that it actually did have that effect. This approach could be adopted in the case of discrimination on the grounds of disability, sexual orientation, religion and age.
The other option offered by the Government is to apply a consistent definition of harassment across all the grounds of discrimination but with an added requirement that tribunals will have to assess whether a reasonable person would have regarded the conduct in question as harassment. The question of what is harassment will continue to be a live issue as further negotiations on the subject are due to take place in Brussels.
The impact of all of these measures will take time to be felt. Of more immediate concern to employers and HR professionals will be the need to keep abreast of developments in Europe and the conclusions of the consultation process.
janet.gaymer@haynet.com
Janet Gaymer is senior partner at Simmons & Simmons