Consultative draft discrimination Regulations: an EOR guide

The government has issued consultative draft Regulations for amending the Race Relations and Disability Discrimination Acts and for implementing the new rights not to be discriminated against on grounds of religion or belief, or sexual orientation1.

The proposed legislation will implement the various strands of the EU Race Discrimination Directive and the Framework Employment Directive, and follows an earlier round of consultations (Implementing the Employment and Race Directives: An EOR Guide ). The changes to the Race Relations Act (RRA) will come into force in July 2003. The new rights relating to sexual orientation and religion come into force in December 2003. The Disability Discrimination Act (DDA) amendments will be implemented in October 2004. The age discrimination strand of the Directive will be implemented with effect from December 2006 and a further consultation on age is expected towards the end of the first half of this year. The government has asked for responses to the consultation by 24 January 2003.

Proposals to amend the Equal Pay Act have also been issued and will be covered in our next edition. In addition, sex discrimination legislation will need to be amended now that the final wording of the revised Equal Treatment Directive has been agreed (this will also be covered in a future edition of EOR).

Key common themes

The various draft Regulations are accompanied by two government documents. Equality and diversity: The way ahead summarises the government's main proposals. Equality and diversity: Making it happen looks at the structure of equality machinery, including proposals for a single equality commission (see box). Both documents are also available from the DTI website indicated below or by telephone.

The way ahead emphasises that one of the government's main overall aims is "to make equality legislation more coherent and easier to use". In accordance with that, the general principle is that the same wording is to be used for all the main concepts of discrimination: direct discrimination, indirect discrimination, harassment and victimisation (although in disability legislation, the concept of "reasonable adjustments" will be retained to deal with most indirect discrimination). In this article, we sometimes use the term "protected grounds" as a shorthand to refer to discrimination on grounds of race, religion or belief, sexual orientation, disability (and, where relevant, sex and age).

One major, albeit not unexpected, decision announced in The way ahead is that the government is not proposing to extend the right not to be discriminated against on grounds of sexual orientation, religion or belief, or age to areas outside employment and vocational training, so as to cover discrimination in respect of access to goods, facilities, services or premises. The consultation document explains: "There is no requirement in the Employment Directive to do this. The introduction of new employment legislation is a significant step in its own right, and employers and others will need time to adjust their policies and practices. We will keep the effect of this legislation under review."

Many will regard the result of this decision as treating religion or belief and sexual orientation as second-class rights in comparison with sex, race and disability discrimination, and as being inconsistent with the principle that there should be no hierarchy of rights.

Indirect discrimination

Article 2(2)(b) of the Framework Employment Directive stipulates that indirect discrimination shall be taken to occur where "an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary . . ." The Race Discrimination Directive uses the same language in respect of persons of a "racial or ethnic origin".

In accordance with the government's commitment to adopt a coherent approach to indirect discrimination across equality legislation, the draft Regulations thus employ essentially the same definition for race, religion or belief and sexual orientation.

Using the language of the draft Race Relations Act 1976 (Amendment) Regulations, indirect discrimination is defined thus:

"A person also discriminates against another if in any circumstances relevant for the purposes of any provision referred to in subsection (1B) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but -

(a) which puts or would put persons of the same race or national or ethnic origins as that other at a particular disadvantage when compared with other persons;

(b) which puts that other at that disadvantage; and

(c) which he cannot show to be a proportionate means of achieving a legitimate aim."

The first limb of this definition, like the Sex Discrimination Act (SDA) following implementation of the Burden of Proof Regulations , makes clear that a "provision, criterion or practice" can be challenged. This is a much broader concept than a "requirement or condition" as currently found in s.1(1)(b) of the RRA, covering informal practices as well as formal ones.

Subsection (a), by its reference to "puts" or "would put", shows that detailed statistical evidence as to the impact of the challenged practice will not always be necessary. It will be sufficient if it can be shown, perhaps via economic or sociological evidence, that the practice would be likely to have an adverse impact on the group to which the applicant belongs.

Subsection (b), as in the existing RRA definition, confirms that hypothetical cases, however, cannot be brought. The practice must, in fact, disadvantage the applicant or applicants challenging it. Although the new definition uses the word "disadvantage" rather than "detriment", this is a distinction without a difference as "detriment" has been interpreted as meaning "placing under a disadvantage".

The novel feature of the new definition is the employer's defence. Instead of the familiar test of current legislation, referring to whether the employer can show that the practice is "justifiable", or using the language of the Directives themselves, the government is proposing a new formulation based on the concept of "proportionality". Whether an indirectly discriminatory practice will be lawful or unlawful will depend on whether the employer can show that it is "a proportionate means of achieving a legitimate aim".

This is a concept taken mainly from European human rights law. The employer must first show that the impugned policy or practice was intended to achieve an aim that was "legitimate" and not discriminatory. That aspect is a relatively straightforward test approximating to the current test that the justification for indirect discrimination must be without regard to the race or sex etc of the groups concerned.

But what will the tribunals and courts make of the test that the means of achieving the aim must be shown to be "proportionate"? The principle of proportionality, in general terms, requires that there must be a reasonable relationship between a particular objective to be achieved and the means used to achieve that objective. This is how it has been applied by the European Court of Human Rights in cases under Article 14, the non-discrimination article of the European Convention. Human rights cases under the European Convention, however, concern claims that human rights have been violated by the state. As such, in a human rights context, the principle of proportionality has always been interpreted having regard to the "margin of appreciation" - or discretion - allowed to governments under European human rights law.

A similar approach has been taken by the European Court of Justice (ECJ) when national legislation has been challenged as being indirectly sex discriminatory. Thus, in R v Secretary of State for Employment ex parte Seymour-Smith (EOR 84), the ECJ held, that where adverse impact has been shown, "it is for the member state, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim." When the Seymour-Smith case returned to the House of Lords, this was interpreted as meaning that that the government is to be afforded "a broad measure of discretion".

If all employers are to be given a "margin of appreciation" or"a broad measure of discretion" in imposing indirectly discriminatory policies and practices, that would mean that the test would be considerably less stringent than under existing UK race discrimination law. In so far as race discrimination law is concerned (although not in respect of the new rights), that would be impermissible in that it would contravene the important "non-regression" principle embodied in the Directives, that implementation of the Directives cannot result in a diminution of rights.

The principle of proportionality has also figured in UK administrative law, and once again with results that cast serious doubt on whether it is a suitable test for indirect discrimination. Lord Hoffmann in the Sunday Trading cases said that the standard of review entailed by the doctrine of proportionality is much the same as that of Wednesbury irrationality, whether no reasonable decision-maker in the circumstances could have arrived at the decision in question.

This is clearly not what the government intends in proposing to substitute a test of proportionality for a test of objective justification. Not only would it breach the non-regression principle, it would also fail to give effect to the language of the Directive which requires that the means for achieving the legitimate aim must be "appropriate and necessary". The missing word "necessary" is rather like the dog that didn't bark in the night. Why is it not used in the draft Regulations? If it is intended that the test should be less stringent than one of necessity, that will not implement the Directive correctly.

Uncertainty is compounded by the fact that, in all the documents and explanatory notes issued as part of the consultation package, there is no explanation at all of how the new test is intended to work, save for one single exception. This, rather ironically, is found in the explanatory notes for the draft DDA amendment Regulations, where the very concept of indirect discrimination applies only in relatively narrowly-defined circumstances. These include where the trustees or managers of an occupational pension scheme apply an apparently neutral provision, criterion or practice to a disabled person. In explaining how the test will work, the explanatory note says: "Trustees or managers will, thus, have to justify the application of neutral provisions (etc) to disabled people by reference to the test of objective justification. They will, therefore, have to show that the provision in question is justified by reference to a legitimate aim and is a proportionate way of achieving that aim. Thus, trustees and managers of occupational pension schemes who do not provide ill-health retirement benefits to people who are likely to have to leave paid employment before a certain age, will have to show that the rule is applied for the purposes of achieving a legitimate aim, to all relevant members (or potential members of the scheme) and that the aim cannot be achieved in a less discriminatory way"(our emphasis).

This interpretation suggests that the principle of proportionality cannot be satisfied if it can be shown that the employer could achieve its aim in a less discriminatory way. That accords with the way proportionality has sometimes been interpreted by the ECJ. Clayton and Tomlinson explain in their textbook Human rights law: "The application of the principle of proportionality appears to involve three elements: first, whether the measure in question was a useful, suitable or effective means of achieving a legitimate aim or objective; second, whether there were means of achieving that aim which were less restrictive of the applicant's interests; and third, even if there were a no less restrictive means of achieving the aim available, whether the measure has an excessive or disproportionate effect on the applicant's interests."

Interpreted in this way, proportionality has been said to involve both a "balancing test", whereby the means must be balanced against the aim (the "sledgehammer and the nut" principle) and a "necessity" test, meaning that if a particular objective can be attained by more than one available means, the least discriminatory of these means must be adopted.

If that is what the government intends in proposing that the employer must show that the indirectly discriminatory practice is "a proportionate means of achieving a legitimate aim", that would indeed sharpen the test for justification. But unless the government is prepared to spell out much more clearly what this principle means, either in the legislation itself or in official statements that can be relied upon for the purposes of interpretation, the replacement of more than 25 years of case law on what is "justifiable" with the nebulous concept of "proportionality" will be certain to confuse employers, applicants and employment tribunals.

Harassment

The Race Discrimination Directive and the Framework Employment Directive require member states to make harassment on the various grounds covered unlawful. The Directives define harassment as occurring when unwanted conduct based on one of the grounds of prohibited discrimination 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".

However, as discussed in Implementing the Employment and Race Directives: An EOR Guide , the conjunctive nature of this wording would require a complainant to prove both that the harassment had the requisite purpose or effect and that it damaged the working environment within the meaning of the definition. In its first consultation document, the government recognised that existing UK case law based on the definition first set out in the European Commission Code of Practice on measures to combat sexual harassment at work (EOR 41) went further than the definitions in the Directives. The proposed new Regulations contain a freestanding definition of discrimination by way of "harassment" which follows the principles set out by the case law.

Using as an example the language of the draft Race Relations Act 1976 (Amendment) Regulations, harassment is defined as follows:

"(1) A person subjects another to harassment . . . where, on the grounds of that other's race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of -

(a) violating that other's dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for that other.

(2) For the purposes of subsection (1), conduct shall be regarded as having the effect specified in paragraphs (a) and (b) of that subsection if, and only if, having regard to all the circumstances, including, in particular, the perception of that other, it should reasonably be considered as having that effect."

As noted, there are comparable provisions relating to harassment on grounds of religion or belief, sexual orientation or disability.

Looking at the definition in more detail, there are a number of aspects to which attention can be drawn. The first limb of subsection (1) emphasises that what is at issue is conduct which is "unwanted" by the recipient. This is consistent with the sexual harassment code and the case law under the SDA and RRA.

This limb of the definition also provides that unwanted conduct can be unlawful either where it is intentionally harassive or, even if it does not have that purpose, where it has the requisite effect as defined in subsection (1)(a) or (b).

Those two subsections distinguish between the individual's "dignity" and their working environment. Thus, a one-off incident of homophobic harassment, for example, might be said to violate the recipient's dignity. Conversely, an employer who tolerated homophobic remarks in the workplace might be said to have created an offensive working environment for gay people, even if the applicant was unable to point to a remark specifically directed to them as an individual.

Somewhat more controversial is proposed subsection (2). This provides that harassment will only be regarded as having had the effect of violating the applicant's dignity or of creating an offensive etc working environment if it "should reasonably be considered as having that effect". According to the explanatory notes, this subsection "reflects the judgment of the employment appeal tribunal in the case of Driskel v Peninsula Business Services Ltd [2000] IRLR 151 (which concerned the approach to be followed by tribunals when considering whether alleged harassment amounted to sex discrimination). Therefore, an over-sensitive complainant who takes offence unreasonably at a perfectly innocent comment would probably not be considered as having been harassed."

What subsection (2) does is to add an objective dimension to the test of harassment in cases where it cannot be established that the harasser had a discriminatory purpose (note that the subsection only applies at all where it is the effect of the conduct on the recipient that is at issue rather than the purpose).

It is strongly arguable that this is necessary on the wording of subsection (1). This defines harassment very much as a subjective concept, from the standpoint of the recipient, and rightly so. It is for the recipient to determine whether the conduct is "unwanted" by him or her. Whether the conduct has the effect of violating the recipient's dignity depends on how they, subjectively, perceive the conduct, as does whether the conduct has the effect of creating a degrading or offensive environment for them. The principle that is enshrined here is that it is for each person to determine what offends them.

Yet, since legal rights and liability are at issue, it is simply common sense to place some objective parameters on this subjective concept. Otherwise, in effect, an employer could be liable for unlawful "harassment" no matter how unreasonable a recipient's perception of the behaviour was.

In the first consultative document, the government proposed that "when deciding whether conduct amounts to harassment, tribunals should consider whether a reasonable person would have regarded the conduct concerned as violating the dignity of the complainant." This was criticised for focusing on the view of tribunal members as to what is harassment rather than the perception of the recipient. The new draft expressly instructs the tribunal to take into account the perception of the applicant as one of the circumstances in deciding whether it was reasonable for the applicant to consider that their dignity was violated or that an offensive working environment had been created by the conduct in question. The explanatory note to the draft race Regulations explains: "Tribunals should . . . employ a test of reasonableness, taking into account the views of the person being harassed and the motives of the alleged perpetrator."

As noted above, this provision will only apply where the harasser's purpose was not to violate the recipient's dignity or damage their working environment. It is therefore axiomatic that they will not have a discriminatory motive, and it is unsettling that the government still thinks the harasser's "innocent" motive should be of relevance in determining whether the conduct was unlawful. Our case law has long recognised that "I was only joking" is an explanation, not an excuse, and it would be impermissibly retrograde for this kind of defence to be resurrected.

It is also arguable that the government's formulation still places too much emphasis on what the tribunal members think they themselves would regard as unlawful harassment. The danger in this is illustrated by the recent case of Thomas v Robinson, reported in the January 2003 IRLR, in which Judge Reid QC commented that "there are some work environments in which (undesirable though it may be) racial abuse is given and taken in good part by members of different ethnic groups. In such cases, the mere making of a racist remark could not be regarded as a detriment." Most people familiar with harassment will know that the fact that someone who is subjected to racist, sexist, homophobic or sectarian abuse responds in kind, does not mean that the abuse is taken "in good part". It is the kind of naïve view expressed by the EAT that makes a harassment test emphasising what the tribunal thinks problematic. A test that focused on whether the applicant, in the particular circumstances, could reasonably consider that the conduct had the effect in question, would be an improvement.

Burden of proof

All the new Regulations will implement the burden of proof provisions in the Directives. As with the Burden of Proof Regulations 2001 relating to sex discrimination - now s.63A of the SDA - the draft Regulations provide that:

"Where the complainant proves facts from which the tribunal could . . . conclude in the absence of an adequate explanation that the respondent - (a) has committed an act of discrimination or harassment against the complainant which is unlawful . . . or (b) is . . . to be treated as having committed such an act of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act."

As we pointed out in Burden of Proof Regulations 2001 , this represents a significant shift from the existing case law, in that once a prima facie case has been established, the onus will be on the employer to prove that it did not commit an act of discrimination and, if this onus is not discharged, a tribunal "shall" - ie must - find that the employer unlawfully discriminated. Despite this, the explanatory note for the draft disability Regulations (though not the explanatory notes for race, religion, or sexual orientation) perpetuate the canard that this change will "largely reflect the existing practice followed by tribunals".

Constructive dismissal

All of the draft Regulations make clear that the definition of "dismissal" includes termination of employment via the employee terminating their own employment "in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer" - ie to treat themselves as having been constructively dismissed. This is an issue on which there have been conflicting decisions under the DDA.

Post-employment victimisation

The enforcement provisions of the Framework Employment Directive oblige member states to ensure that judicial procedures are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, "even after the relationship in which the discrimination is alleged to have occurred has ended".

This is not currently possible under UK race and disability discrimination law because the ECJ's ruling in the sex discrimination case of Coote v Granada Hospitality Ltd (EOR 82), that the Equal Treatment Directive protects ex-employees who are victimised by their former employer because they brought sex discrimination proceedings, has been narrowly construed by UK courts. It has been held in D'Souza v London Borough of Lambeth that protection against post-employment victimisation does not apply to race discrimination claims. This case, together with Rhys-Harper v Relaxion Group on post-termination discrimination other than victimisation, was appealed to the House of Lords and argued in November. Decision was awaited as we went to press, but whatever the outcome, this issue will be covered by the new Regulations.

The consultative draft provides as follows:

"(1) In this regulation a 'relevant relationship' is a relationship during the course of which an act of discrimination or harassment by one party to the relationship ('A') against the other party to it ('B') would be unlawful by virtue of any provision of this Part.

(2) Where a relevant relationship has come to an end, it is unlawful for A -

(a) to discriminate against B by subjecting him to a detriment; or

(b) to subject B to harassment;

where the discrimination or harassment arises out of and is closely connected to that relationship."

The main practical issues addressed by these provisions are references in respect of former employees and access to facilities that are offered to other ex-employees. The kind of case that will now be caught is that of the former employer who refuses to provide a reference, or who provides an adverse reference, because of the employee's race, religion, disability or sexual orientation, or because they brought discrimination proceedings against the employer. It is notable that the proposed wording places no time limit on the obligation not to discriminate in this way (although the normal time limit of three months from the alleged act of discrimination itself will apply to bringing claims). The issue is treated entirely as one of causation. The explanatory note states: "The further removed the alleged act of discrimination is from the former working relationship, in both time and context, the less likely it is that a person will be able to establish the necessary close connection back to the relationship."

In future, however, employers will need to ensure that their policy relating to references, and their personnel records, are such that ex-employees are not given an adverse reference, such as by suggesting that they were a troublemaker, if there is reason for believing that this assessment is connected with one of the protected grounds.

Race discrimination

The main changes of practical significance to the RRA made by the Race Relations Act 1976 (Amendment) Regulations, implementing the EU Race Discrimination Directive, were discussed above. They include a new definition of indirect discrimination, a freestanding definition of racial harassment and a change to the burden of proof. However, the scope of these changes only affects some forms of race discrimination under the RRA and not others.

Scope

The RRA prohibits discrimination on grounds of race, colour, ethnic or national origin, or nationality. The Race Discrimination Directive covers only discrimination on grounds of race, ethnic or national origins but not colour or nationality.

The government has decided to implement the new Directives by Regulations made under s.2 of the European Communities Act rather than by primary legislation, which has to pass through all the stages of parliamentary consideration. This is said to be "to ensure that the principles of the Race Directive are fully incorporated into our law by July 2003", although of course that could also have been done by primary legislation if a Bill had been introduced in sufficient time. Regulations made under the European Communities Act, as many EOR readers will recall, can go no further than is required by the EU legislation that they are intended to implement. The result is that the new Regulations cannot cover cases brought on grounds of colour or nationality.

The way ahead blandly acknowledges: "We intend to rectify any inconsistencies that occur in the amended Race Relations Act as a result when an opportunity arises." These "inconsistencies", however, do not only undermine the aim to make legislation "more coherent". Instead, they make the legislation substantially less coherent. For each of the aspects summarised at the beginning of this section and set out in more detail in the rest of this article - indirect discrimination, harassment, burden of proof, occupational requirements - there will now be a two-tier system, with one definition applicable in cases where the act is challenged as being discrimination on grounds of race, ethnic or national origin, and a very different definition applicable in cases where the act is challenged as being on grounds of nationality or colour.

Genuine occupational requirements

The RRA currently has a specific list of narrowly-drawn "genuine occupational qualifications". These are to be replaced by the concept of "genuine occupational requirements", in so far as discrimination on grounds of race, ethnic or national origins is concerned. The draft Regulations provide:

"(1) in relation to discrimination on grounds of race or ethnic or national origins . . .

(a) section 4(1)(a) or (c) does not apply to any employment, and

(b) section 4(2)(b) does not apply to promotion or transfer to, or training for, any employment, where subsection (2) applies.

(2) This subsection applies only where, having regard to the nature of the employment or the context in which it is carried out —

(a) being of a particular race or particular ethnic or national origins is a genuine and determining occupational requirement; and

(b) it is proportionate to apply that requirement in the particular case."

Note that in order to satisfy this exception, being of a particular race etc must not only be a genuine occupational requirement for a particular post, it must also be a "determining" requirement for that post - ie it must be decisive. Even then, it must also be proportionate to apply the requirement.

Religion or belief

The general structure of the draft Employment Equality (Religion or Belief) Regulations 2003 is directly parallel to the SDA and RRA. Direct and indirect discrimination in employment on grounds of religion or belief, by way of victimisation or by way of harassment, is prohibited. The Regulations extend to discrimination against contract workers and by qualifications bodies. Employers are made legally liable for discrimination by their employees and enforcement proceedings can be brought in an employment tribunal.

Meaning of "religion" and "belief"

The Framework Employment Directive contains no definition of "religion" or "belief". The first consultation raised a number of difficult issues in connection with this strand. Some of these have been answered by the draft Regulations, but others remain.

The government, probably wisely, has resisted calls to attempt to provide a detailed definition or set out an exhaustive list of groups that should be regarded as religions. The draft Regulations merely specify that "religion or belief" means "any religion, religious belief, or similar philosophical belief".

So far as religions are concerned, defining it as including "any religion" will tend to cover fringe religions and membership of cults. There is unlikely to be any need for Scientologists or Moonies, for example, to bring proceedings to establish that their members are protected by this definition.

"Religious belief" is likely to cover manifestations of a person's religion as well as belonging to the religion itself. An employer who discriminates against an observant Muslim because he refuses to work on Friday would not be able to defend its position by arguing that the discrimination was not on grounds of being a Muslim, but merely because of the refusal to work Fridays. A tribunal should find that not working on Fridays was part of a Muslim's religious beliefs.

What is meant by "similar philosophical belief"? The way ahead sets forth the government's view that " 'belief' should be taken to refer to a religious or similar belief, but not a political belief more generally." The explanatory notes are somewhat more circumspect, suggesting that "this does not include any philosophical or political belief unless that belief is similar to a religious belief." It adds: "The courts and tribunals may consider a number of factors when deciding what is a 'religion or belief' (eg collective worship, clear belief system, profound belief affecting way of life or view of the world)."

The right not to be discriminated against on grounds of religion or belief is not intended to be co-extensive with Article 9 of the European Human Rights Convention, which protects freedom of thought, conscience and religion (from interference by a public authority). It is also clear that it is not intended to provide protection against discrimination on grounds of "political opinion", in contrast to the position in Northern Ireland. These provisions will not protect an employee from being discriminated against on grounds of membership of the Labour or Conservative Party, for example. Some political beliefs, however, may be similar to religious beliefs, at least in the way that they are practised by particular individuals. Communism, National Socialism, pacifism - all could be said to involve belief systems affecting the believer's world view.

Similarly, there are philosophical beliefs which most people would regard as similar to a religious belief. Humanism or pacifism, for example, are likely to fall within the scope of the Regulations. Nevertheless, there are bound to be grey areas and scope for litigation. To take two examples, will an animal rights activist be able to claim protection under the Regulations? Will an abortion advisory service be able to insist that its employees are not opposed to abortion?

Direct discrimination

The draft Regulations contain an intriguing definition of direct discrimination. They provide:

"For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -

(a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons."

The explanatory notes say that direct discrimination occurs "where, because of B's religion or belief, A treats B less favourably than he treats or would treat other persons." But that is not really what the definition says. The definition proposed makes it unlawful on grounds of religion or belief for A to treat B less favourably. This could be because of B's religion, but on the current wording, it could also be because of A's religion.

If this is what was intended (or, if it was not, if it is maintained in the final wording), it will be welcomed by equal opportunities advocates. It would provide the answer, for example, to those who have expressed concern that the new right not to be discriminated against on grounds of sexual orientation could be undermined by someone claiming that same-sex relationships were abhorrent to their religious beliefs. On our reading, the gay person thereby discriminated against could bring a claim under the religious discrimination Regulations that they had been discriminated against by A on grounds of A's religious beliefs about sexual orientation. More broadly, the same reasoning would apply to someone who discriminates against others because they do not share their own religious beliefs rather than because of the religious beliefs (if any) which the person discriminated against has.

Genuine occupational requirement

The Framework Employment Directive contains a derogation allowing differences of treatment based on a person's religion or belief in respect of employment by "churches or other public or private organisations the ethos of which is based on religion or belief", where this is a "genuine, legitimate and justified occupational requirement having regard to the organisation's ethos". The Directive adds that: "Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos."

How the UK would implement this exception has been the subject of much debate. In the end, the government has decided to implement it as narrowly as is consistent with the spirit of the Directive in allowing some form of exclusion.

Draft reg. 7(2) proposes to state that the provisions relating to discrimination in recruitment and selection do not apply:

"Where, having regard to the nature of the employment or the context in which it is carried out -

(a) being of a particular religion or belief is a genuine and determining occupational requirement for the job; and

(b) it is proportionate to apply that requirement in the particular case, and this paragraph applies whether or not the employer has an ethos based on religion or belief."

Draft reg. 7(3) goes on to further provide:

"This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out -

(a) being of a particular religion or belief is a genuine occupational requirement for the job; and

(b) it is proportionate to apply that requirement in the particular case."

The distinction that is being drawn here is between ethos-based organisations and others. In both cases, the employer must show that being of a particular religion or belief is a genuine occupational requirement (GOR) for the job, and that it is proportionate to apply that requirement in the particular case. In the case of an ethos-based employer, however, it is not necessary to also show that being of a particular religion or belief is a "determining" occupational requirement for the job. As the explanatory notes put it: "This means that the religious organisation GOR is slightly broader than the general GOR, because the employer is not required to show that religion or belief is a determining (ie decisive) factor in selection for the post in question. However, the employer must still show that the religion or belief is a requirement, and not just one of many relevant factors."

In either case, the proportionality test should ensure that religious exclusions apply only to particular posts where religion or belief is relevant. Thus, it is improbable that a Roman Catholic school would be able to insist that its cleaners are Roman Catholic. It is noteworthy also that the government has not adopted the "loyalty" clause in the Directive. That was a source of concern to gays, amongst others, who feared that their sexual activities might be treated as antithetical to an organisation's ethos.

Sexual orientation discrimination

The general structure of the draft Employment Equality (Sexual Orientation) Regulations 2003 is also directly parallel to the SDA and RRA. Direct and indirect discrimination in employment on grounds of sexual orientation, by way of victimisation or by way of harassment, is prohibited. The Regulations extend to discrimination against contract workers and by qualifications bodies. Employers are made legally liable for discrimination by their employees, and enforcement proceedings can be brought in an employment tribunal.

Meaning of "sexual orientation"

The Framework Employment Directive contains no definition of "sexual orientation". The government originally proposed as an option prohibiting discrimination on grounds of "heterosexual, homosexual or bisexual orientation", and this in essence is what it has done, although, in a well-publicised acknowledgment of the sensibilities of the gay community, it has dropped the term "homosexual" altogether from the Regulations.

The definition reads:

" 'Sexual orientation' means 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."

There are important questions about the scope of this definition. During the consultation, there was discussion as to whether the new right would protect minority sexual practices. The explanatory notes say that the definition "does not extend to sexual practices and preferences (eg sado-masochism and paedophilia)". This is hardly surprising in that providing statutory protection for such practices would have been a tabloid newspaper's dream.

This formulation, however, makes it unclear whether a distinction is being drawn between a person's sexual "orientation" and their sexual "behaviour" or "practices", which may be the manifestation of their orientation. (A similar issue might have arisen in the context of religion, but for the fact that the definition refers not only to "religion" but also to "religious belief".)

Will an employer, for example, be able to say to a lesbian: "I don't care what you do in the privacy of your bedroom, but please don't walk around my store at lunchtime in your company uniform holding hands with your partner because the customers don't like it"? Will an employer be able to say that it is happy to employ gay men or women, and do so, as long as they do not look obviously gay?Unless the answer to both these and other similar questions is "no", the right not to be discriminated against on grounds of sexual orientation will be worth very little indeed.

Direct discrimination

As with religious discrimination, the definition of direct discrimination in respect of sexual orientation is broader than might be anticipated. The draft Regulations provide:

"For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -

(a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons . . ."

The point here, as with the comparable provisions in religious discrimination, is that the definition as worded would cover discrimination by a person because of their own sexual orientation. For example, it would encompass harassment of another man by A, regardless of the sexual orientation of the man harassed. Once again, this is not reflected in the explanatory notes, which suggest only that "direct discrimination occurs where, because of B's sexual orientation, A treats B less favourably than he treats or would treat other persons."

Like the definition of direct discrimination in the religious discrimination Regulations, the explanatory notes make clear that discrimination on grounds of sexual orientation can also include discrimination based on perceived sexual orientation, whether the perception is right or wrong. "This means that people will be able to bring a claim even if the discrimination was based on (incorrect) assumptions about their sexual orientation. Nor will they be required to disclose their sexual orientation in bringing a claim - it will be sufficient that they have suffered a disadvantage because of the assumptions made about their orientation."

Exception for benefits dependent on marital status

Recital 22 to the Directive says that: "This Directive is without prejudice to national laws on marital status and the benefits dependent thereon."

The government, as foreshadowed in the first consultation, has taken this to mean that benefits which are aimed exclusively at married couples will continue to be allowable. The draft Regulations provide:

"Nothing in Parts II to IV of these Regulations shall render unlawful anything which prevents or restricts access to a benefit by reference to marital status."

As we pointed out in Implementing the Employment and Race Directives: An EOR Guide , it seems questionable whether this is permitted by the Directive. The Directive covers pay, and this includes benefits such as those payable to a partner on a pension-holder's death. The government's view is that where the rules of a pension scheme restrict benefits to opposite sex partners, that will constitute unlawful direct discrimination on grounds of sexual orientation.

Benefits aimed at married couples, on the face of it, should constitute indirect discrimination against lesbian and gay couples (until the marriage laws are altered). The government's view that because of recital 22 this can be ignored treats a recital to the Directive not as an aid to its interpretation but as if it was part of the language of the Directive itself. In any event, the applicability of the recital to survivors' benefits provided by occupational pension schemes is problematic. The better construction of the relevant sentence is that the "benefits" referred to in the recital are not those dependent on "marital status" generally (so as to encompass benefits linked to marital status under private occupational schemes) but rather those dependent on "national laws on marital status". On that reading, this would permit exceptions for social security schemes, such as widow's benefit, but would not extend to occupational schemes, since occupational schemes are governed by their own rules and not by national laws on marital status.

Disability discrimination

The government has decided to retain most of the main structure of the DDA's definition of disability, which differs from the other prohibited grounds of discrimination in two key respects: less favourable treatment for a reason related to disability can be justified by the employer, and the duty of reasonable adjustment takes the place of an obligation to justify indirect discrimination.

However, as with the other protected grounds, the draft Disability Discrimination Act 1995 (Amendment) Regulations will provide, for the first time, a prohibition of harassment and of discrimination after the relevant relationship has ended, and will lay down rules for shifting the burden of proof where a complainant establishes a prima facie case of discrimination.

Coverage

The Framework Directive provides little scope for general exclusions. One of the main changes to be made in October 2004 is the removal of the small employer exception, bringing into scope employers with fewer than 15 employees.

In addition, employment on ships, planes and hovercraft, firefighters, prison officers and specialised police forces will be covered. According to the explanatory notes, "this will ensure that some seven million additional jobs, in which around 600,000 disabled people currently work, will be subject to the Act's protection."

Justification

Several changes are made to the test for justifying disability discrimination, although most of the main elements of the existing approach are retained.

First, as trailed for some time, the possibility of justifying a failure to make a reasonable adjustment is to be removed. A failure to comply with a duty to make reasonable adjustments will be unlawful discrimination. The explanatory notes point out that: "The Directive does not allow for a second defence. In any event, any 'reasonable' adjustment which an employer, say, might argue he was justified in not making, would have been unreasonable for him to have to make in the first place."

Second, the possibility of justification is removed when the reason for less favourable treatment is merely that the person has a disability. This change is to comply with the general definition in the Framework Directive, which defines direct discrimination as where "one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to."

The draft Regulations provide that:

"Treatment of a disabled person cannot be justified if the reason for it -

(a) is not based on a consideration of that individual's abilities; but

(b) is instead merely because he has a disability."

The explanatory notes say that the intention of the change is "to outlaw prejudicial treatment imposed simply because a person is disabled, such as a 'blanket ban' on the employment of persons with a particular disability. Justification of such treatment has always been unlikely, but the subsection now makes this explicit."

The notes give some examples where the new section would be likely to apply:

  • "An employer, on learning that a job applicant has diabetes, summarily rejects the application without giving any consideration of the applicant's circumstances or whether the person concerned would be competent to do the job (with or without a reasonable adjustment)."

  • "A disabled employee is refused access to the employer's sports and social club simply on the basis that the club does not allow disabled members, and without consideration of whether the employee might benefit from membership, and even though they could access the club with a reasonable adjustment."

  • "Without any consideration of whether he will be able to work for as many years as other employees, a newly recruited disabled person is required to pay the same contributions to an occupational pension scheme even though he is denied access to ill-health retirement benefits available to other members of the scheme."

    Occupational pensions and group insurance

    The Framework Directive allows member states to choose between an indirect discrimination approach and a reasonable adjustment approach to dealing with cases where a provision, criterion or practice has an adverse impact on disabled people.

    The draft Regulations will change the DDA's provisions in respect of pension schemes and group insurance contracts. Employers will be required to make reasonable adjustments for particular disabled people where they are responsible for setting the scheme rules and those rules cause a substantial disadvantage, whereas pension managers, trustees and insurers will have to justify the way in which they fulfil their responsibilities under the scheme in an objective way (for example, by using actuarial evidence). According to the explanatory notes, justification "seems more appropriate" rather than that the trustees/managers should be obliged to make adjustments in individual cases.

    Managers and trustees will also be required to make reasonable adjustments when they provide information to disabled people relating to the terms and conditions of the scheme.

    1 Available from www.dti.gov.uk/er/equality or by calling 0870 1502 500.

    Options for equality institutions

    The government has published a further consultation document on the long-term options for equality machinery in Great Britain (see footnote above).

    A single equality commission is one of the three main options being considered, and is very much the odds-on favourite.

    The other two options are a "single gateway" and an "overarching commission". The single gateway would focus on providing a single point of contact for information and advice. Beyond this, the existing commissions would retain their own governance, policies and priorities. An overarching commission would have a governance structure that would determine strategic priorities and direction, and make key decisions on budget allocations. Each strand would have a representative on the overarching body, and each of the strands might have a board to decide that strand's priorities.

    In her introduction to the consultation, Barbara Roche, the minister for women, announces that any new structure is unlikely to be operative before 2006.

    Replies to this round of consultation are due no later than 21 February 2003. Following this consultation, the government expects to reach a decision of principle on the broad shape of new arrangements in the spring of this year. The next round of consultation will focus on the detailed powers, functions and organisation of any new arrangements.