Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation

Discrimination Law as we know it is about to change. With the arrival of two new European Directives on Race and Employment, will come new rights prohibiting discrimination on the grounds of religious belief and sexual orientation by 2003, and on the grounds of age by 2006. In addition, both our existing Race Relations Act and Disability Discrimination Act will need to be expanded, with the Race Relations Act needing to be changed by 2003 and the Government committed to changing the Disability Discrimination Act by October 2004.

The Government has just completed a first round of consultation on the two Directives. In their consultation paper 'Towards Equality and Diversity', some provisional views are expressed as to how they see the Directives being implemented. Further consultation is anticipated later this year. At the moment therefore we do not know exactly what the new laws will look like. Nonetheless, we can draw some preliminary conclusions.

Sexual Orientation

Desperately overdue, the Employment Directive will require Member States to introduce laws outlawing discrimination on the grounds of sexual orientation. A number of difficult issues will need to be resolved. For example, the consultation paper raises the question of how 'sexual orientation' should be defined: should it be specified as 'heterosexual, bisexual or homosexual' or left open for the Tribunals to determine (and so for example cover cross dressing)? On a separate point, the consultation paper also raises the vexed question of the extent to which pension benefits for same sex partners are to be protected. Although the document concedes that discrimination on the grounds of sexual orientation in relation to pension benefits is on the face of it covered by the Directive, they limit its application by pointing to the exemption in the Directive which states that rights are 'without prejudice to national laws on marital status and the benefits dependant thereon'. In a conservative interpretation of this provision, the consultation document suggests that this exemption will allow pension scheme rules to restrict benefits to surviving (married) spouses. What will not be allowed any more is less favourable treatment of homosexual (unmarried) partners in comparison to unmarried heterosexual partners. Whether this interpretation is a correct interpretation of the Directive is debatable.

Concerns have also been expressed at the confusion that is likely to arise in that the Employment Directive only covers employment issues, whereas our current Sex Discrimination Act covers not only employment but also access to goods, facilities and services. So far attempts to establish that the Sex Discrimination Act, interpreted in the light of the Human Rights Act, already covers sexual orientation have failed, but the House of Lords will decide the issue later this year in Pearce v Governing Body of Mayfield School (2001 IRLR 669). If this argument succeeds, then it is likely that the all areas of protection under the Sex Discrimination Act will cover sexual orientation discrimination, but if it does not, the new sexual orientation provisions could cover no more than employment. A similar confusion will also arise with the Race Relations and Disability Discrimination Acts. It is to be hoped that during the course of the consultation process, the lack of consistency between the new rights under the Directive and our existing discrimination laws will be resolved and made coherent.

Religion or Belief

New rights not to be discriminated on the grounds of religion or belief will need to be implemented by 2003. This area is also controversial. The consultation paper seeks views as to what should be covered by the words 'religion or belief'. Should specific religions be named, or should it be left to the discretion of the Tribunals? Where does this leave marginal religious groups such as, for example, the Scientologists? The consultation paper also seeks views on what exemptions should be available to churches that require their staff to be of their religion. The terms of the Directive potentially allow discrimination where it relates to the requirements of the organisation's 'ethos'. The consultation document asks whether this means that, for example, a denominational school would be allowed to recruit staff only of a particular denomination, regardless of the actual demands of the job or only where the demands of the particular job require it.

Disability

The Disability Discrimination Act will require amending in the light of the Directive, and the consultation paper states that amendments will be made by October 2004 at the same time as the other changes to the Act being proposed as a consequence of the Disability Rights Task Force report.

The Directive's provisions in relation to disability differ to discrimination on the other grounds, in that in place of the traditional indirect discrimination protection, the alternative duty to adjust is available. However, the relationship between indirect discrimination and the duty to adjust is not clear, either in the Directive or the consultation document. Likewise, the consultation paper does not touch upon the question of whether there will need to be any changes to the Disability Discrimination Act's current requirement for the employer to have knowledge of the disability before they are under any obligation to adjust (Section 6(6)). The justification defence will no longer be sustainable when the Directive is in force and the rather subjective justification test set out in Jones v The Post Office may be too low a threshold to comply with the Directive. Many of the current exclusions and exemptions under the Disability Discrimination Act will need to be removed such as the small employer exemption, occupational restrictions such as police officers and fire-fighters as well as the restrictions in relation to pensions, performance related pay and insurance.

Age

Some of the most radical changes are likely to come with the implementation of the new provisions on age. Laws prohibiting discrimination on the grounds of age will need to be in place by 2006.

The consultation paper seeks views as to whether retirement ages should be permitted or outlawed. On the one hand they allow younger staff and under represented groups to be recruited and promoted, and they also facilitate a suitable exit for older staff. On the other hand, there are many employees who can actively contribute to an organisation and for whom a retirement age of 60 or 65 unfairly and inappropriately deprives them of a job. The Government has not yet decided how the age provisions are to be implemented. An indication of their thinking may be gained from the very recent abolition of minimum age requirements for judicial posts and the reversion to a retirement age of 70.

Harassment

As the law now stands, we do not have any statutory definition of harassment in the current discrimination legislation, though Tribunals have long recognised its existence as a form of direct discrimination. This will now change, and it appears from the consultation paper that the same definition of harassment is likely to apply to all forms of discrimination. The definition proposed will follow the definition in the Directive, which covers unwanted conduct (on one of the discriminatory grounds) 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'.

The consultation document invites views as to whether Tribunals should judge harassment by reference to whether 'a reasonable person would have regarded the conduct concerned as violating the dignity of the complainant'. Many unions and other parties have expressed concern at this definition which ignores the perception of the individual concerned, leaving the assessment of whether or not harassment has taken place in the hands of the judges.

Post Employment Victimisation

If a former employee has been discriminated against in the provision of a reference after their employment has ended, they are currently protected under the Sex Discrimination Act, but not under the Disability Discrimination Act or the Race Relations Act. This anomalous situation will need to change under the two Directives. It is not clear from the consultation paper whether it is proposed that the discrimination be extended to cover all post employment circumstances, such as appeals, or just the provision of letters of reference.

The consultation process on the Employment and Race Directives is ongoing, with a further consultation paper expected later this year.

Copies of Thompsons' detailed submissions on the two Directives are available from the Employment Rights Unit, Congress House.