There have been two developments in Europe of which employers should be aware. Both relate to discrimination.
Article 13 of the Treaty of Amsterdam, which came into force on 1 May 1999, contains specific powers to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Already there are two new directives: one, on equal treatment irrespective of racial or ethnic origin, must be implemented by member states by 19 July 2003.
Although we already have race discrimination legislation, this directive contains some surprises. The definition of indirect discrimination, for example, is based on European Courts of Justice case law. Such discrimination occurs where an apparently neutral provision, criterion or practice puts persons of a racial or ethnic origin at a particular disadvantage when compared with others unless it can be objectively justified. Some believe this will strengthen the position of applicants under the Race Relations Act 1976.
The definition of harassment on racial grounds under this new directive covers unwanted conduct related to racial ethnic origin which takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. There are therefore two criteria for proving racial harassment. A second directive on equal treatment requires member states to introduce legislation to prohibit discrimination against workers on the grounds of religion and sexual orientation by 2003, and disability and age by 2006.
Workers are protected against unfair treatment on the above grounds in relation to selection, promotion and working conditions. Under this directive employers have to prove that they were not guilty of discrimination once workers have produced evidence to suggest that there is a case to answer. Existing legislation already deals with discrimination on the grounds of sex and disability.
Adding religion to the list is likely to cause controversy, since faith organisations wish to discriminate on the grounds of religious belief where justifiable, for example where a church may insist on hiring a Christian priest but not a Christian secretary.
With regard to sexual orientation, the Employment Appeal Tribunal has already ruled that discrimination on the grounds of sexual orientation is unlawful under the terms of the Sex Discrimination Act.
In the case in question (McDonald vs Ministry of Defence) a homosexual was forced to resign after he had declared his homosexuality to his commanding officer. The policy of the Ministry of Defence at the time was that homosexuality was incompatible with working in the armed services.
The Employment Tribunal nevertheless ruled that the reason for terminating the individuals employment was his sexuality. The Employment Appeal Tribunal disagreed with this finding and stated that the case did not therefore fall within the scope of the Sex Discrimination Act.
And what of age discrimination? The directive emphasises that there are circumstances in which it can be objectively justified. These include, for example, setting age limits for job applications, or providing special working conditions to ensure the protection of young people.
To date, the Governments approach to age discrimination has been to tackle it by voluntary means. However, the requirement to implement such legislation, even if it wont happen until some time in the future, is bound to be encouraging to those who believe that making age discrimination unlawful is the best way forward.
Although the introduction of the new legislation is a few years away, it may be worth employers and HR directors who are planning their long-term diariesentering a few dates during the coming years to prepare themselves for the expanded scope of discrimination in the workplace.
Email address:
janet.gaymer@haynet.com
Janet Gaymer is senior partner at Simmons & Simmons
