This article examines the UK situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.
The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).
A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.
In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The UK responses are set out below (along with the questions asked).
Existing situation
What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?
The EU framework equal treatment Directive establishes significant new rights for groups of UK workers previously unprotected by legislation and will amend the existing Disability Discrimination Act 1995 (TN0102201S).
There is presently no legislation on age discrimination, although the UK government introduced a voluntary Code of Practice for age diversity in employment in 1998, which is not legally enforceable (UK9906110N and TN0010201S). The government’s aim was to encourage employers to ensure that age is not a barrier to jobs and opportunities. The Code of Practice emphasises the benefits for employers in avoiding age discrimination.
The Disability Discrimination Act 1995 prohibits discrimination against job applicants and those already in employment on grounds of disability and requires employers to make 'reasonable adjustments' to accommodate people’s disabilities.
Legislation prohibiting discrimination on grounds of religion is currently restricted to Northern Ireland under the Fair Employment and Treatment Order 1998, which aims to reduce differences in employment levels and opportunities between Catholics and Protestants. In addition, where religion is shown as linked to ethnic origin, individuals are protected by the Race Relations Act 1976.
Discrimination on grounds of sexuality is not covered by existing legislation and attempts to bring cases under the Sex Discrimination Act 1975 have failed.
State response
How has the state responded to the Directive since December 2000 in terms of:
- legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;
- broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.
Following a two-stage public consultation process (UK0201117N), regulations to implement the Directive's provisions on sexual orientation and religion and belief and to make changes to the Disability Discrimination Act 1995 have now been issued. These are the: Employment Equality (Sexual Orientation) Regulations 2003; Employment Equality (Religion or Belief) Regulations 2003; and Disability Discrimination Act 1995 (Amendment) Regulations 2003. The proposed implementation date of the regulations on sexual orientation and religion or belief is 1 December 2003, while the amendments on disability will be implemented on 1 October 2004. The government has opted for the extended deadline of 2 December 2006 to implement regulations on age, on the grounds that there are more complex issues involved and that there may be differences of treatment which can be justified on grounds of age, especially when it comes to retirement ages and pensions provision.
The regulations covering sexual orientation and religion or belief make it unlawful to discriminate either directly or indirectly in employment and vocational training. Significantly, they will not extend to cover discrimination in respect of access to goods, facilities, services or premises, unlike the legislation on sex, race and disability.
With regard to sexual orientation, the UK’s definition is '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'. This definition is preferred by the gay community over the original proposal of 'heterosexual, homosexual or bisexual'. Importantly, discrimination based on perceived sexual orientation is covered by the regulations, meaning that there will be no requirement to disclose actual sexual orientation when bringing a claim. The government has decided to continue to allow employers to provide benefits exclusively to married couples, although this will be open to charges of indirect discrimination.
The definition adopted for regulations on religion or belief is 'any religion, religious belief, or similar philosophical belief'. While 'any religion' will cover minority and fringe religions, as well as mainstream ones, it is unclear what is meant by 'similar philosophical belief', although the government has indicated that political belief is not included. The government has decided to interpret narrowly the EU requirement to allow differences of treatment where religion constitutes a 'genuine occupational requirement' (GOR) to apply only to 'ethos-based' organisations where the employer can show that there is a GOR for the particular job.
With regard to amendments to disability legislation, for the first time harassment, and discrimination after the relevant relationship has ended, will be illegal. The new Act will also shift the burden of proof to the employer, where the complainant establishes a prima facie case of discrimination; it will remove the current small employer exemption and will extend the Act to cover, among others, the police, partnerships and barristers.
Public consultation on the proposals relating to age (UK0201170F) closes on 20 October 2003 and legislation will be laid before parliament at the end of 2004. The proposals in the consultation document will outlaw direct and indirect discrimination against people in work and job applicants. The government favours a right for employers to treat people differently on grounds of age, but they will have to justify doing so by establishing a GOR (examples of GORs include acting and modelling). It is proposed that mandatory retirement ages will be unlawful unless objectively justified, with a default age of 70 being considered. The government warns that the commonplace practice of differences in pay based on length of service might amount to indirect discrimination.
The government has promoted social dialogue on the implementation of the Directive largely through its public consultation process and it has also published 'Full Regulatory Impact Assessments' on sexual orientation, religion or belief and disability, and a 'Partial Regulatory Impact Assessment' on age. The assessments consider the numbers affected and provide a summary of the costs and benefits of the legislation, looking at the impact on employers, individuals and the macro-economy.
The government has also carried out a consultation exercise on the options for reforming the public equality machinery, because the current commissions dealing with gender, race and disability provide no obvious 'home' for sexual orientation, religion or belief and age. A single equality commission is one of three main options being considered and is favoured by the government. The other options are: a 'single gateway' providing a single point of contact for information and advice, backed up by the existing commissions; or an 'overarching commission' which would determine strategic priorities and direction and in which each strand would participate.
The above documents are all available from the Department of Trade and Industry (DTI) website but in addition, because of the perceived sensitivity of legislation on age, the government has established a dedicated website – Age Positive– to promote the benefits of age diversity in employment.
Social partner response
What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?
From the consultation responses, the social partners appear to be generally in favour of the new legislation (see above) and there is a feeling that action to tackle discrimination on sexual orientation, age, religion or belief and to strengthen disability legislation is overdue. Employers’ organisations seem generally to welcome the new legislation, although the prospect of regulations on age has provoked some controversy. For example, the Confederation of British Industry (CBI) believes that employers should tackle unfair age discrimination, but it has opposed legislation on grounds that it risks legal uncertainty and rising litigation, and is unlikely to affect employment rates. John Cridland, the deputy director general of the CBI, said that employers recognised that age discrimination was unacceptable, but warned that it could prove tricky to outlaw and risks an 'explosion' of employment tribunal cases. He added, 'much more than any previous discrimination law, age discrimination is particularly difficult to define. Employers need to be clear, whether at recruitment or retirement , they can take common-sense decisions that are inside the law.' However, the Employers Forum on Age, which has 160 member organisations, supports the outlawing of age discrimination and argues that the legislation will present an immense challenge to the way people think about age in the UK and will require significant changes in employment practice. Employers are encouraged to carry out age audits and review procedures and processes as soon as possible in anticipation of the legislation. The Chartered Institute of Personnel and Development is also supportive of anti-age discrimination legislation and is sending practical advice and guidance to its members.
The trade unions are in favour of the principle of new legislation to outlaw discrimination. Commenting on the DTI consultation on ending age discrimination, Brendan Barber, the general secretary of the Trades Union Congress (TUC), said that: 'Research shows that ageism is the top cause of discrimination in the workplace. Workers of all ages can be affected - either because they struggle at the recruitment stage or are treated unfairly once they find work. Today’s proposals should help start to change attitudes and encourage employers to work towards making ageism a thing of the past. Older workers must have the same rights at work as their colleagues - that means the same rights to access training, plus protection from unfair dismissal and redundancy. Unions are keen to banish ageism from workplaces.' However he also voiced concerns over retirement: 'But the proposed regulations must not be used as an excuse to delay or downgrade entitlement to pensions and put pressure on people to work for longer against their wishes.' On sexual orientation, the TUC welcomed the proposals for new legal rights for same-sex couples, but said that it should extend to equality in employers' benefits provision: 'The TUC, which has long campaigned for equal rights for lesbians and gay men, strongly welcomes the government’s proposals ... (but) new employment regulations still allow pension schemes to offer benefits only to married couples, and this must be changed as a matter of urgency.'
The TUC has also called for the government to include a positive duty to promote equality, rather than just to tackle discrimination through negative prohibitions. Further, the TUC believes that protection should be extended to provision of services, as in the sex, race and disability Acts, to avoid constructing a hierarchy of inequalities. The TUC would prefer the new legislation to have the effect of preventing rather than encouraging legal action, which it says would be best achieved by authoritative statutory guidance setting out clearly the rights and responsibilities of all parties. With regard to legal and financial sanctions against employers that discriminate, the TUC wishes to see sanctions that are 'truly dissuasive' and for tribunals to be able to recommend the eradication of any practices found to give rise to discrimination.
Similarly, the equality commissions are supportive of any strengthening of the legislative framework in the area, but the CRE argues additionally for class and representative actions to be heard within the tribunal system of complaints, because it regards this as a more dissuasive sanction. It also argues for the GOR on religion or belief to be defined as narrowly as possible to avoid an overly large legal loophole.
No notable collective agreements are reported since December 2000 on the issues covered by the Directive.
Impact
What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?
There is little information available on the impact to date of the forthcoming legal changes and the government’s Regulatory Impact Assessments (see above) recognise the need to communicate to employers the nature and extent of the changes being introduced. A February 2003 survey of mostly larger employers by the employment research organisation Industrial Relations Services (IRS Employment Review 769) found that three out of four monitor for equality and that most planned to make changes to monitoring arrangements in anticipation of the EU Directive. While monitoring on gender and race is widespread, the survey found that fewer employers monitor on age, and monitoring on religion and sexual orientation is very rare; therefore the latter are likely to be areas for major monitoring developments as the legislation comes on stream. However, a number of 'leading edge' employers are often cited as having started developing policy responses to eliminate discrimination in these areas, including B&Q (retail), JPMorgan Chase (finance), HSBC Bank, British Telecom and Shell (petrochemicals). (Gill Kirton, London Metropolitan University)