Implementing the Employment and Race Directives

The government has issued its consultation document on implementing the EU Framework Employment and Race Directives. Towards Equality and Diversity ¹ is the first step in a process that will culminate with legislation and guidance on sexual orientation discrimination, religious discrimination and race discrimination in the first half of 2003, legislation to amend the Disability Discrimination Act to come into force in October 2004, and age discrimination legislation in 2006. The key chapters of the new consultation document are set out in full below.

The consultation ends on 29 March 2002. In respect of legislation on race, sexual orientation and religion, there will be further consultation in the second half of 2002. Regulations will be laid before Parliament in the first half of 2003, and the Government is committed to issuing written guidance on discrimination on grounds of sexual orientation and religion. Drafts of this will be the subject of consultation before a final version is published at least three months before new legislation comes into force. A similar process will be followed in respect of age discrimination: "We plan to prepare legislation and publish guidance well before December 2006 to ensure that employers have good time to prepare."

Single Equality Commission

The consultation document, for the first time, sets out the Government's position that "there are good arguments to move, in the longer term, towards a single Equality Commission." However, it is acknowledged that "a major change of this nature cannot be achieved effectively in the short term." In particular, the Disability Rights Commission needs time to establish its services.

It seems unlikely that a single Equality Commission will be established before 2006, but the consultation document refers to "transitional arrangements that will enable us to move towards a single commission in the longer term."This may involve allocating the new jurisdictions as between the three existing commissions, with the logical division being for the CRE to get responsibility for religious discrimination, the EOC to get sexual orientation discrimination and the DRC to get age discrimination.

It might be thought that the most effective "transitional arrangement" towards a single commission would be a commitment to a single Equality Act. There is no explicit suggestion of this in the consultation document, but it is fair to say that the consultation emphasises the importance the Government attaches to ensuring "coherence" by "using the same concepts and wording where practicable" in new and existing legislation.

Harassment

Harassment is specifically deemed to be a form of direct discrimination by both the Race and Employment Directives. The Directives specify that this takes place 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."

As we pointed out in EU Employment Framework Directive and Race Relations (Amendment) Act, 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. The consultation document recognises this problem. It notes that the concept of harassment normally applied by employment tribunals is that of "unwanted conduct of a racial or sexual nature or other conduct based on race or sex affecting the dignity of men and women at work" - the definition first set out in the European Commission Code of Practice on measures to combat sexual harassment at work (EOR 41). This definition is broader than that in the new Directives. Because of that, the Government acknowledges that it would not be permissible, in the case of the Race Directive, merely to adopt the new definition, as that would contravene the Directive's non-regression principle, which says that implementation of the Directive by Member States must not mean that the level of protection is reduced.

The Government is offering two options for consideration. The first is to not make any changes to the law when implementing the Race Directive, thereby leaving the definition derived from case law in place, but adopt the stricter definition in respect of the new jurisdictions. The second, which appears more likely, is to enshrine the existing case law definition in all jurisdictions.

The consultation document also puts forward a further possible change to make it clear that there is an objective element involved in the concept of unlawful harassment. "We are also thinking of making it clear in the RRA, DDA and the new legislation 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."

The problems with this sort of approach were set out in the expert report for the European Commission, The dignity of women at work by Michael Rubenstein (EOR 18), which led to the European Commission Code of Practice. That report pointed out: "A purely objective standard based on the reaction of a 'reasonable person' in the circumstances . . . would have the formidable disadvantage of effectively allowing male judges to tell a woman what kind of behaviour should and should not offend her. It would not take account of the differences between most women's views of appropriate sexual conduct and those of men. It would pose the risk that a woman would be unable to challenge the prevailing behaviour in a male-dominated workplace, notwithstanding that the conduct is grossly offensive to her. This would tend to perpetuate the status quo and lock most working women into workplaces which condone sexual harassment."

Instead, the Rubenstein report recommended a standard of the reasonable person subjected to the harassment: "can the particular complainant in the particular circumstances reasonably complain that the harassment was such as to harm her working environment?" As the report pointed out, such a test would provide protection against complainants who are "unduly sensitive".

Post-employment victimisation

The European Court of Justice ruled in Coote v Granada Hospitality Ltd that the Equal Treatment Directive protects ex-employees who are victimised by their former employer, by not providing a reference to a prospective employer, because they brought sex discrimination proceedings. However, this decision has been narrowly construed by UK courts and, in particular, 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, is to be considered by the House of Lords later in the year.

Meanwhile, the consultation document announces that the Government proposes to amend both the Race Relations and Disability Discrimination Acts "so as to allow individuals to seek redress in certain situations falling within the scope of the Directives after the relationship between complainant and respondent has ended, for example where an employer refuses to provide a reference for an employee who has brought a discrimination claim based on either Directive. Similar provision will be made in the new legislation on sexual orientation, religion and belief, and age."

Race discrimination

The main changes that will be needed to the Race Relations Act to ensure that it complies with the Race Discrimination Directive are to the definition of indirect discrimination and to the burden of proof.

One option is for the indirect discrimination definition to be copied out from the Directive: "where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary", with similar definitions being incorporated in other discrimination legislation. The other possibility would be to amend the existing definition in the Race Relations Act so as to cover "provision, criterion or practice" and make clear that disparate impact can be established by means which do not rely on an analysis of statistical evidence.

So far as the burden of proof is concerned, this was altered for sex discrimination purposes by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 , and the consultation document confirms that the Race Relations Act will be amended to similar effect.

Sexual orientation

The Employment Directive requires member states to prohibit direct and indirect employment discrimination on the grounds of "sexual orientation".

The Directive does not cover discrimination on grounds of sexual orientation in respect of access to goods, facilities and services, and there is no mention in the consultation document of extending the scope of protection. Indeed, if the Government follows through with its plan to use the European Communities Act to implement the Directive where possible via Regulations, it will be able to say that this procedure does not permit it to go beyond the scope of the Directive, ie employment.

The Directive contains no definition of the term "sexual orientation". One option put forward by the Government is to transpose this by prohibiting discrimination on grounds of "heterosexual, homosexual or bisexual orientation", rather than the other alternative of leaving the meaning of the term "sexual orientation" to be developed by case law.

The consultation document does not refer, however, to the related problem identified in EOR 95 of whether "orientation" encompasses manifestations of the orientation, ie behaviour. This may be dealt with in the proposed guidance, presumably because any further elaboration of the definition might be inconsistent with the Government's strategy of implementing this part of the Directive by regulations.

One of the main practical benefits of the new legislation for gay people was seen to be in providing a potential
remedy against discrimination in respect of discrimination in pensions and other fringe benefits. The consultation
document points out that where the rules of a scheme "restrict benefits to opposite sex partners whether or not married (to the pension holder), this is likely to be incompatible with the Directive."

The Government goes on to suggest, however, that "where the rules of the scheme restrict benefits to surviving spouses, this is allowable under the Directive. This is because a recital to the Directive says that the Directive is 'without prejudice to national laws on marital status and the benefits dependent thereon'." This interpretation of the Directive is open to question. The derogation allowed by the recital to the Directive certainly covers statutory social security benefits which are directly linked to the legal definition of marriage. However, the link between the coverage of private occupational pension schemes and national law on marital status is more indirect, and an occupational scheme which provides benefits for "spouses" may not contain a definition of that term, or directly link it to the legal definition of "marriage". It is doubtful, for instance, that a change to the legal definition of marriage so as to allow some form of same-sex marriage would automatically, as a matter of law, extend the scope of spousal benefits under occupational pension schemes. By parity of reasoning, a provision in a scheme restricting benefits to "spouses" is not "dependent" on a national law on marital status.

Religion or belief

The Employment Directive prohibits direct and indirect discrimination on the ground of "religion or belief". The Government has decided not to attempt to define "religion", but it does intend to make it clear that the term "belief" does not apply to "political belief". "In our view, 'belief' extends only to religious beliefs and profound philosophical
convictions similar to religious beliefs which deserve society's respect."

The Directive identifies some specific practical issues for employers: leave for religious observance, diet and dress. These will be covered by "detailed guidance".

The Directive contains a derogation allowing differences of treatment based on a person's religion or belief in respect of employment by "churches and 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 consultation document says that "a religious organisation may be able to demonstrate that it is a genuine requirement that all staff - not just senior staff or people with a proselytising function - should belong to the religion concerned, so as to ensure the preservation of the organisation's particular ethos. Alternatively, depending on the circumstances, the exemption might apply only to a number of key posts."

It is difficult to see how the religion of a cleaner or a copy typist can affect an organisation's character one way or the other. This is particularly the case given that the Directive also makes it clear that organisations with an ethos based on religion or belief can expect their staff to "act in good faith and with loyalty" to that ethos.

Nevertheless, the Government proposes to "allow organisations which have an ethos based on religion or belief to pursue employment policies necessary to ensure the preservation of that ethos. But we do not propose to define which particular organisations will be covered by this exemption. Nor do we intend to specify the particular posts which are essential in underpinning an organisation's ethos."

Disability discrimination

We pointed out in EU Employment Framework Directive  that the provisions of the Employment Directive on disability allow member states to deal with indirect discrimination either by adopting the general definition set out in the Directive, or by dealing with such situations via the existing provisions on reasonable adjustment in s.6 of the DDA. The consultation document confirms that the government's general intention in most instances is "to continue simply with the familiar reasonable adjustments approach in the field of employment and training. We feel that this offers effective protection for
disabled individuals."

There are some fundamental differences between an indirect discrimination approach to disability discrimination and the reasonable adjustment approach. Indirect discrimination is a group concept; reasonable adjustment is an individual one. Indirect discrimination is pre-emptive; reasonable adjustment is reactive. Indirect discrimination allows a policy to be attacked directly; whereas with a reasonable adjustment, the impugned policy or arrangement is left intact, though its effect on an individual disabled person is mitigated. There may be differences in the proof required as well.

Because indirect discrimination is a group concept, it is conceivable that an individual disabled person who would have a right to an adjustment under existing law would be unable to prove the requisite adverse impact on a group of people with a particular impairment so as to establish indirect discrimination. Therefore, because of the non-regression principle discussed above, it would not be open to the government to replace the reasonable adjustment concept with indirect discrimination even if it wished to do so.

Whether it should supplement existing law with a right to challenge indirectly discriminatory practices is another story altogether. There is no hint of that in the consultation document, but new legislation is envisaged in respect of areas currently excluded from the duty to make adjustments, such as performance pay, occupational pension and group insurance schemes. The government is proposing to cover these areas either via the reasonable adjustment approach or by requiring indirectly discriminatory rules in these areas to be objectively justified, and is asking for views on how schemes would be affected.

Age discrimination

With the long lead-in time to implementing age discrimination legislation, the government has committed itself to a second age consultation exercise in the second half of 2002. This will contain "a set of firm proposals for action".

The chapter of this consultation document on age discrimination, therefore, mainly poses questions on which views are sought. These include the key and controversial area of whether mandatory retirement ages should continue to be permitted.

There are powerful arguments for allowing this, subject to safeguards. These include facilitating
workforce planning by employers and allowing planning of pension obligations; eliminating blockages to the
promotion of younger people, including those from under-represented groups; and achieving a dignified end to the employment relationship.

Many equal opportunities specialists would regard these considerations as being outweighed by the fundamental injustice of depriving an employee of their job, regardless of their ability, on the basis that they had reached a chronological age. A general mandatory retirement age would severely undermine any protection offered by age discrimination legislation both directly, and indirectly by making it much easier to justify not recruiting or promoting or training people because they are approaching the mandatory retirement age.

Our approach to implementing the Directives

Main principles

3.1 Our approach to implementing the Directives is guided by three main principles:

(a) To develop practical, workable and effective legislation which fully meets the standards required by the Directive and will have a real impact in removing unfair discrimination and improving people's lives - but without stifling business with unnecessary burdens.

(b) To seek greater coherence where possible between strands (e.g. race, religion, age, etc) so that rights and obligations are easier for individuals and employers to understand. Wherever sensible and practical, we aim to ensure that requirements in new and existing legislation contain the same or similar concepts and wording. We will implement groups of legislation together where practicable.

(c) To ensure that sufficient time is given to employers, employees and other interested parties to consider our proposals for implementing the Directives; to respond to consultation at each stage; and to prepare for their implementation.

Legislation

3.2 The process of implementing the Directives is made even more complex by their differences in scope, timing and impact explained in Figure 1. With this in mind, we intend to prepare separate items of legislation for each of the strands and to use regulations under Section 2(2) of the European Communities Act 1972 to implement the Directives, where practicable. This will help us to manage the process of implementation in a way which allows sufficient time for consultation and preparation, but without missing important deadlines.

Next steps

3.3 After publishing this paper, we will:

(a) respond to questions by making additional briefing available via the internet or through our freephone consultation lines. We want the consultation process to be dynamic. We will continue to take soundings with representative groups after the formal deadline has passed, so that implementing legislation is well-informed.

(b) prepare more detailed proposals on sexual orientation, religion and age as the basis for further consultation. We will consult, in addition, on guidance on each subject.

(c) allow employers at least three months before legislation comes into force to consider the guidance and make any changes needed to their policies and working practices. We plan to make use of the additional time available (until 2006) to implement the Employment Directive's provisions on age.

Timetable

3.4 Legislation on race, sexual orientation and religion will be implemented first, in the second half of 2003. Our proposed timetable is as follows:

29 March 2002 Consultation ends

Second half of 2002Consultation on draft regulations (3 months)

First half of 2003Lay regulations before Parliament

Consultation on draft guidance (3 months)

Publication of guidance

3.5 For the other strands:

(a) Disability. We are ending the exemption of small employers from the DDA in October 2004 and also propose to make the other changes to the DDA required by the Employment Directive at the same time. These will include ending other occupational and employment exemptions and omissions from the DDA mentioned in Towards Inclusion.

(b) Age discrimination. Along with other European member states, we argued that a longer period (until 2006) should be available to implement the age provisions of the Employment Directive. We plan to prepare legislation
and publish guidance well before December 2006 to ensure that employers have good time to prepare.

3.6 An amendment to the EU Equal Treatment Directive (which covers sex discrimination) is likely to be agreed amongst European member states by the end of the year. We expect that the deadline for its implementation will fall into the early part of 2005. If practicable, we shall look to implement any necessary changes to the SDA at the same time as introducing new legislation on age.

Direct discrimination

The Directives

4.1 Both Directives state that direct discrimination occurs 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 of discrimination covered by the Directives. In other words it means a difference of treatment simply because of a person's race, sexual orientation, religion or belief, disability, or age, rather than (for example) a person's competence to do a particular job.

4.2 The Employment Directive also contains a recital (no. 17) which makes clear that the Directive does not require a person to be recruited, promoted, kept in employment, or given training "where he or she is not competent, capable or available to perform the essential functions of the post concerned or to undergo the relevant training" (except where - in the case of a person with a disability - he or she can be made capable, competent or available by means of a reasonable adjustment: see Part 3, paragraphs 14.7 to 14.10 below).

4.3 Except in relation to age, differences of treatment based directly on one of the grounds covered by the Directives can be justified only in limited circumstances - in particular, where it is a "genuine and determining occupational requirement" that a job be done by a person of a particular racial group, religion etc. (See chapter 9 below.)

4.4 There is a more general provision allowing differences of treatment directly on the basis of age to be justified in certain circumstances. This is described in Part 3, paragraphs 15.5 to 15.7, of this document.

Existing legislation

4.5 The RRA contains a definition very similar to the one in the Directives. So, for example, employers commit direct discrimination under the RRA where on racial grounds they treat an employee less favourably than they would treat another employee in comparable circumstances. The approach of the DDA is rather different. This is described in Part 3, paragraph 14.6, of this document.

Our proposal

4.6 We do not propose to make any amendment to the definition of direct discrimination in the RRA. And we intend to apply the RRA definition in the new legislation on sexual orientation, religion or belief, and age.

4.7 The definition of discrimination in the DDA will require only minor alterations to make it clear that direct discrimination in the narrow sense used by the Employment Directive cannot be justified. (See Part 3, paragraph 14.6)

Do you agree with this approach?

Indirect discrimination

The Directives

5.1 Both Directives state that indirect discrimination occurs where an apparently neutral "provision, criterion or practice" would put persons of a given group (e.g. members of a racial or religious group) at a particular disadvantage compared with other persons, unless the provision, criterion or practice can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

5.2 This is supplemented by a recital in each directive which says:

"The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence."

Existing legislation

5.3 Under the RRA, indirect discrimination occurs where a requirement or condition is applied which:

(a) a considerably smaller proportion of persons of a particular racial group are able to comply with when compared with persons not of that group;

(b) cannot be justified by the employer (or other person applying the requirement or condition) irrespective of racial grounds; and

(c) is to the detriment of the complainant.

5.4 Once again, the DDA uses a different approach. This is described in Part 3, paragraph 14.8 of this document.

Our proposal

5.5 Option 1. To incorporate the formulation used in the Directives' definition (or something very similar) in new legislation on age, sexual orientation and religion, and in legislation to amend the RRA. We might also use this definition in the DDA in the limited circumstances explained in Part 3, paragraph 14.13. It could also be adopted in the SDA, provided that this is in line with the Equal Treatment Amendment Directive which is currently being negotiated in Brussels.

5.6 A single definition of indirect discrimination should remove some of the complexities facing individuals and business when allegations of multiple discrimination arise: for example on grounds of race and religion. Having a single definition might also help save training and other costs for business.

5.7 Option 2. The definition used in the Directives would still be adopted in new legislation to cover sexual orientation, religion, age and, in certain limited areas, disability. But the existing RRA definition would be left intact, subject to the following minor adjustments:

(a) "requirement or condition" would be expanded to cover "provision, criterion or practice" (the wording used in the Directive); and

(b) it would be made clear that a complainant could seek to establish whether "a considerably smaller proportion" of his or her racial group was able to comply with the provision, criterion or practice in comparison with other groups, by means which do not rely on an analysis of statistical evidence.

5.8 This option would have the benefit of minimising the changes to the RRA, but the revised definition would then be inconsistent with the one used in the new legislation on sexual orientation, religion and age. In our view, it would not be practicable to apply the RRA definition, as so amended, to the new legislation on sexual orientation, religion and age - or in the DDA.

5.9 Either option 1 or option 2 would mean that informal practices, as well as formal requirements and conditions, would fall within the definition of indirect discrimination. Moreover, comparative disadvantage to particular groups could be proved by evidence which did not depend on compilation of statistics. We therefore believe that both options would enhance the protection available to individuals, but option 1 is likely to have longer-term benefits to businesses and individuals.

5.10 The choice is, therefore, between a consistent definition across all the grounds of discrimination (option 1), or one which would minimise changes to current law (option 2)

Which do you prefer

Harassment

The Directives

6.1 Both the Race and Employment Directives specify that harassment is to be treated as a form of direct discrimination when unwanted conduct based on a ground of discrimination covered by either Directive 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".

6.2 The Directives go on to say that, in this context, "the concept of harassment may be defined in accordance with the national laws and practice of the member states".

Existing legislation

6.3 The RRA and SDA do not specifically refer to harassment, but it is clear from case law that racial or sexual harassment is a type of detriment capable of amounting to less favourable treatment prohibited by the Acts. Employment Tribunals normally define harassment as unwanted conduct of a racial or sexual nature or other conduct based on race or sex affecting the dignity of men and women at work.

6.4 Similarly, the DDA does not expressly mention harassment, but it does prohibit discrimination against persons with disabilities "by subjecting them to detriment".

Our proposals

6.5 We have identified two options for implementation:

6.6 Option 1. In relation to sexual orientation, religion, disability and age, harassment could be defined by using the formulation set out in Article 2(3) of the Employment Directive. This would mean that, in order to establish that harassment had occurred, a complainant would have to show that:

(a) he or she had been the victim of unwanted conduct based on one of the grounds of discrimination concerned;

(b) the conduct had been intended to violate his or her dignity, or that it actually did have that effect; and

(c) the conduct had been intended to create an intimidating, hostile, degrading, humiliating or offensive environment for him or her, or that it actually did have that effect.

In harassment cases under the RRA, a complainant need prove only items (a) and (b). The Directives' definition is therefore stricter.

6.7 It is not open to us to incorporate that definition in the RRA because Article 6(2) of the Race Directive says that the level of protection against discrimination must not be reduced. Under option 1, we would therefore not intend to make any specific amendment to the RRA in relation to harassment. Tribunals would continue to apply their existing approach when determining whether harassment had occurred.

6.8 Option 1 would have the advantage of minimising changes to the RRA. Existing, familiar case law on racial harassment could continue to be applied. Legislation on the new grounds of discrimination would incorporate the clear Employment Directive definition, although this is a stricter test than that applied under the RRA.

6.9 Option 2. This would involve applying a consistent definition of harassment across all the grounds of discrimination covered by the Directives. We would do this by enshrining the existing case law definition (see above) in the RRA. We have in mind that the effect of the new provision would be that harassment (as so defined) constituted discrimination. We would incorporate very similar provisions in the new legislation on sexual orientation, religion and age. We would also explicitly outlaw harassment in the DDA in a way which took account of its different approach to tackling discrimination.

6.10 We are also thinking of making it clear in the RRA, DDA and the new legislation 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.

6.11 An advantage of the Option 2 definition is that it should make it easier to deal with cases involving allegations of harassment on multiple grounds (e.g. where an employee suffered harassment because he was both black and gay). And in overall terms, the test for deciding when harassment has occurred would be more straightforward than under Option 1.

6.12 The Equal Treatment Amendment Directive is currently being negotiated in Brussels. This is likely to include a specific definition of harassment which we will need to reflect in the SDA. Depending on the final outcome of the negotiations, it may be possible to use the option 2 definition in the SDA.

6.13 Do you favour option 1 or option 2? Please say why.

6.14 If you prefer option 2, would you support the idea that Tribunals should assess whether "a reasonable person" would have regarded the conduct in question as harassment?

Promoting equal treatment

The Directives

7.1 The Race Directive requires member states to designate a body or bodies to "promote" race equality, and to assist individuals to pursue complaints. The Employment Directive does not have a corresponding requirement.

Existing legislation

7.2 Great Britain has already established the Commission for Racial Equality, as well as the Disability Rights Commission and the Equal Opportunities Commission (responsible for gender issues and equal pay for men and women).

Our proposal

7.3 We believe that, in the longer term, there are arguments in favour of a single, statutory commission offering integrated advice, guidance and support on equality matters. That would be in the interests of businesses and individuals, particularly those who are the subject of multiple discrimination. It would also help to ensure a coherent approach to equality issues across the board.

7.4 We are, however, clear that a major change of this nature cannot be achieved effectively in the short term. In particular, the Disability Rights Commission is a young organisation, established as recently as April 2000. It needs time to establish its services to support the continuing implementation of the DDA. We also want to learn from the experience in Northern Ireland where a single commission was established in the same year.

7.5 We therefore propose to develop transitional arrangements that will enable us to move towards a single commission in the longer term. Meanwhile, chapter 8 sets out how advice, guidance and support might be provided on the new grounds of discrimination.

Advice, guidance and support

The Directives

8.1 Both Directives require member states to take care that details of implementing legislation should be brought to the attention of those with an interest.

8.2 As mentioned in chapter 7 above, the Race Directive requires member states to designate a body to promote race equality, to give advice and to assist individuals in pursuing complaints. But there is no corresponding requirement in the Employment Directive.

Existing legislation

8.3 The Commission for Racial Equality and the Disability Rights Commission already have powers to issue guidance, and to provide advice to individuals, businesses and others, in relation to the provisions of the RRA and DDA respectively.

Our proposal

8.4 Although not required by the Employment Directive, we consider it important that individuals should have access to practical advice and support if they believe that they have been the subject of unlawful discrimination on the grounds of sexual orientation, religion or belief, or age.

8.5 We therefore think that written guidance should be available so that individuals, employers and others are aware of their rights and responsibilities under the legislation dealing with these new grounds. We propose that guidance should be prepared or commissioned by the Government, and that drafts will be the subject of consultation before a final version is published at least three months before new legislation comes into force.

8.6 Which organisations, in your view, should be involved in helping to prepare practical guidance for the use of both business and individuals?

8.7 In our view, individuals should also be able to obtain advice about ways of resolving difficult situations at work or, if there is a clear case of discrimination, how to make a formal complaint. This kind of advice is already available from: ACAS regional telephone centres; Citizens Advice Bureaux and trade unions; and the Equal Opportunities Commission, Commission for Racial Equality and Disability Rights Commission under the current equality legislation. Business can also get impartial advice from the Equality Direct telephone advice service.

8.8 What arrangements should be made available to provide support in these areas on the new grounds of age, religion and sexual orientation?

Occupational requirements

The Directives

9.1 When transposing the Race and Employment Directives, member states have an option to provide that differences in treatment based on a characteristic related to a particular racial or ethnic origin, sexual orientation, religion or belief, disability or age can be justified where having that characteristic is "a genuine and determining occupational requirement", but only where "the objective is legitimate and the requirement is proportionate."

Existing legislation

9.2 Section 5 of the RRA specifies circumstances where it may be a genuine occupational qualification for a job to be carried out by someone of a particular racial group. These include reasons of authenticity, in a dramatic performance or other entertainment for example, or for authenticity as an artist's or photographer's model. Also section 4(3) exempts employment in a private household from the provisions of the Act.

9.3 The DDA already ensures that employers and others can seek to justify employing someone because they have a particular disability.

Our proposal

9.4 We do not propose to include a list of permissible occupational requirements as part of new legislation on sexual orientation, religion or belief and age. We think that this approach would be too inflexible. It would be very difficult to specify every possible circumstance when a genuine occupational requirement may arise.

9.5 Instead, we propose that there should be a provision of general application, allowing employers to recruit staff on the basis of a "genuine occupational requirement" in the rare situation where they could show that it was an essentially defining feature of the job for the employee to be of a particular sexual orientation, religion or belief, or age. It will then be a matter for Employment Tribunals and the Courts to judge whether the criteria set out in the legislation have been met in particular cases. We propose to give written guidance listing some examples of the circumstances in which employers could rely on this limited exception. Do you agree?

9.6 For the same reasons we propose to delete section 4(3) and 5 of the RRA. In their place, we will provide that membership of a particular racial or ethnic group could be a genuine occupational requirement where it is an essentially defining feature of a job. Do you agree?

9.7 We do not propose to make any amendment to existing provisions of the DDA.

Positive action

The Directives

10.1 The Employment and Race Directives permit the UK to maintain or adopt positive action measures to "prevent or compensate for disadvantages" linked to racial or ethnic origin, sexual orientation, religion or belief, disability and age.

Existing legislation

10.2 The RRA already permits certain types of positive action relating to race. Employers may:

(a) encourage job applications from particular racial or ethnic groups which are currently under-represented in the workforce (for example, by saying in advertisements that members of such groups are particularly welcome to apply);

(b) offer training programmes to develop the potential of particular groups of employees which are under-represented in particular types of work in a company.

10.3 It is for employers to show that initiatives of this type are justified. However, the RRA does not allow positive discrimination: for example, where a company only recruits new staff who are of a particular racial or ethnic group because persons of that origin are under-represented in its workforce.

10.4 The DDA works quite differently, permitting positive action in favour of disabled people generally. It is not unlawful to treat a person differently on the grounds that they do not have a disability.

Our proposal

10.5 In preparing the new legislation on sexual orientation, religion and age, we propose to enable employers - if they wish - to take positive action on grounds comparable to those set out in the RRA. Positive discrimination will not be permitted. We do not propose to amend the existing provisions of the RRA or DDA.

Do you agree?

Race: some specific issues

11.1 As part of our determination to achieve race equality in this country, we are working to develop the right legislative framework and the Race Directive is an important part of this. The Race Relations (Amendment) Act 2000 was the first significant change to Great Britain's race legislation in 25 years. The Directive takes this a step further. It will establish a common standard of legal protection from race discrimination across Europe, impacting upon employment and training, as well as education, access to goods and services including housing, social protection and social advantages.

11.2 Here in Great Britain, our long-standing legislation in this area already complies with much of what is covered by the Race Directive. The Race Relations Act 1976 (RRA) already makes it unlawful to discriminate on grounds of race in relation to employment, training and education, the provision of goods, facilities and services, the provision of housing and certain other specified activities. The Race Relations (Amendment) Act 2000 strengthened the RRA by making race discrimination unlawful in the carrying out of public authority functions, and by placing a duty on public authorities to promote race equality. We will be implementing the Race Directive within the broad terms of the RRA.

11.3 Amendments to the RRA resulting from the Directive are unlikely to impact heavily on companies as the business case for diversity is now widely recognised. The RRA has been in force for 25 years and employers are well used to its principles. The real cost to business arises when it does not address discrimination issues and consequently faces legal action that could be avoided by embracing the business case for diversity and putting in place good practice.

11.4 Many of the issues covered by the Race Directive are also included in the Employment Directive. These cross-cutting issues are set out in detail in Part 2 of this consultation paper. There are other race-specific issues that will require amendment to the RRA in order to comply with the provisions of the Race Directive. These are set out below. Please do take some time to read through the proposals in this chapter and let us know what you think on the enclosed questionnaire.

Seamen recruited abroad

11.5 Section 9 of the RRA provides that race discrimination is not an issue where seamen are recruited onto British ships at overseas ports. In the light of the Directive, we consider that this provision is no longer appropriate. Do you agree?

Training for those not ordinarily resident in the UK

11.6 Section 6 of the RRA provides an exception from the provisions of the Act in circumstances where employment is intended to provide training in skills which are intended to be exercised outside Great Britain. Section 7(4) contains a similar provision, in respect of contract workers. Section 36 provides that, where access to facilities for training is provided to someone not ordinarily resident in Great Britain, an act of discrimination is not unlawful when that person does not intend to subsequently remain in Great Britain.

In the light of the Directive we consider that these provisions are no longer appropriate. Do you agree?

Charities as employers

11.7 When acting as employers, charities are exempt from the provisions of the RRA. This is to allow charities that support people from particular racial and ethnic groups to recruit workers from those groups if the nature of the work requires it. Under the Directive, charities will be subject to the same rules of recruitment as any other employer. It is not our aim, however, to restrict the work of charities in any way and they will, in appropriate circumstances, be able to rely on the provision of genuine occupational requirements (see Part 2, chapter 9 in this document) if there is a need to appoint individuals from a particular racial or ethnic group. Do you agree?

Charities as providers of goods, facilities and services

11.8 When providing goods, facilities and services, charities are not currently subject to the provisions of the RRA. We propose to remedy this. However, we propose to retain an exception for charities and other bodies whose activities are directed at compensating for disadvantage linked to racial or ethnic origin, so that they will not be precluded from carrying out this essential element of their work. Do you agree?

Partnerships of fewer than six people

11.9 Section 10 of the RRA provides that partnerships of fewer than six persons are currently exempt from its provisions. In the light of the Directive, we consider that this provision is no longer appropriate. Do you agree?

Disposal and management of small dwellings

11.10 Section 22 of the RRA provides that discrimination is not unlawful when it occurs in the disposal of small dwellings. In light of the Directive we propose to remove this exception, other than in circumstances where the disposal and management of the small dwelling is in relation to a letting of an essentially private nature, when someone rents a room in a private home and shares facilities with the householder. Do you agree?

Sexual orientation: some specific issues

Introduction

12.1 A person's sexual orientation generally has no bearing whatsoever on their ability or suitability to do their job. The Employment Directive is an important step forward in protecting employees from unfair treatment on the basis of their sexual orientation. We shall introduce new legislation to implement the Directive's provisions in this area by 2003.

12.2 We shall prepare draft implementing regulations as the basis for further, detailed consultation next year. At this stage, there are two specific issues on which it would be helpful to receive your views. Please do take some time to read through the proposals in this chapter and let us know what you think on the enclosed questionnaire.

Harassment

12.3 Our work during negotiations on the Directive last year and early discussions with representative groups have left us in no doubt that harassment is a particularly important issue for lesbians and gay men. A recent survey by the TUC suggests that as many as 44% of gay men and lesbians have experienced some form of discrimination in the workplace, and that a large proportion of this would count as harassment. That is unacceptable. Since we need to define harassment for each strand of legislation, this issue is covered in Part 2, chapter 6 of this document. We would welcome comments about the options presented there; and whether the approaches suggested would cover the range of behaviour which gay men and lesbians, in particular, believe to be unfair discrimination.

Definition

12.4 The purpose of the Directive is to "lay down a general framework for combating discrimination on the grounds of … sexual orientation as regards employment and occupation". When transposing the directive, one option would be to refer in general terms to "sexual orientation", without qualification. It would, however, take some time for cases to be considered at Employment Tribunals and in the Courts to clarify the scope of new protection.

12.5 The alternative is to outlaw discrimination, more specifically, on grounds of heterosexual, homosexual or bisexual orientation. (This definition does not deal with discrimination on the grounds of gender re-assignment. This is already covered by existing legislation) 3 This definition, in our view, meets the requirements of the Directive. It would also offer individuals and employers more clarity, by establishing that everyone - whether gay, lesbian, straight or bisexual - would be protected from discrimination in employment, occupation and training. Do you agree with this approach?

12.6 A concern voiced by some during negotiations on the text of the Directive last year was that - in addition to outlawing discrimination against people on the basis of their heterosexual, homosexual or bisexual orientation - it could also be used to protect those who have unlawful sex, in particular paedophiles. We do not believe that this is the intention of the Directive. Moreover, Article 2(5) allows member states to "take measures … which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others."

Pay, pensions and other benefits

12.7 The scope of the Employment Directive includes "employment and working conditions … and pay". The term "pay" is likely to include all types of remuneration, including fringe benefits -such as group private health insurance, and occupational pensions. The Directive may therefore make it unlawful to discriminate directly or indirectly in relation to benefits under occupational pension schemes - for staff working in both the public and private sectors. However, the Directive does not cover state pensions or social security schemes.

³ See the Equal Treatment Directive and section 2A of the Sex Discrimination Act 1975.

12.8 In the context of occupational pensions, this could have an impact where benefits are payable to a partner on the death of the pension holder. Where rules of the scheme (for example) restrict benefits to opposite sex partners (whether or not married to the pension holder), this is likely to amount to direct discrimination and, therefore, will be incompatible with the Directive. However, where the rules of the scheme restrict benefits to surviving spouses, this is allowable under the Directive. This is because the Directive is expressed to be "without prejudice to national laws on marital status and the benefits dependent thereon" (see Employment Directive, recital 22).

Religion: some specific issues

Our aims in implementing the Directive

13.1 The Employment Directive requires member states to introduce new legislation prohibiting direct and indirect discrimination and harassment on the ground of religion or belief in the areas of employment, self-employment, occupation and vocational training - although there is a special exemption designed to allow churches and other religious or belief organisations to preserve their ethos.

13.2 When implementing the Directive, we therefore intend:

(a) to ensure that discrimination in the work place on the grounds of religion or belief will no longer be acceptable; and

(b) to ensure that churches - and other public and private organisations whose ethos is based on religion or belief - can continue to recruit staff of the same religion or belief where that is necessary to enable the preservation of that ethos.

13.3 We would welcome views and comments on a number of areas as we consider how best to draw up the new legislation. Please do take some time to read through the proposals in this chapter and let us know what you think on the enclosed questionnaire.

Definition of "religion or belief"

13.4 The Employment Directive contains no definition of "religion or belief", and it is therefore for us to specify any appropriate definition in implementing legislation. Given the wide variety of different faiths and beliefs in this country, we have reached the view that we should not attempt to define "religion or belief", and that it would be better to leave it to the Courts to resolve definitional issues as they arise.

13.5 However, we do intend to make it clear that the term "belief" does not apply to political belief - which is not covered by the Directive. In our view, "belief" extends only to religious beliefs and profound philosophical convictions similar to religious belief which deserve society's respect.

13.6 Our proposal is therefore that the new legislation should prohibit discrimination on the grounds of "religion or belief" in the areas covered by the Directive, but without giving any further definition of the term, except to say that belief should be taken to refer to a religious or similar belief, and not political belief. Do you agree with our approach?

Practical issues for all employers

13.7 The legislation will make it unlawful for employers to discriminate directly or indirectly when dealing with issues such as requests for leave for religious observance, or in laying down rules on dress, uniform etc. Once the legislation is prepared, we will be consulting on draft guidance to give practical assistance on these issues.

13.8 The legislation will not require employers automatically to grant all requests for leave for religious observance. But they must avoid both direct discrimination (for example, by refusing individual requests for leave simply because of the employee's religion or belief) and indirect discrimination, i.e. applying rules on leave which particularly disadvantage some groups in comparison with others and which cannot be objectively justified.

13.9 We have also considered issues such as diet, dress and religious observance. The Directive does not require employers to put specific arrangements in place on any of these fronts. However, employers will need to avoid having rules which discriminate directly or indirectly against staff on the ground of religion or belief. We propose to provide detailed guidance on these issues to help employers. Do you have views on what advice we should offer
on these issues in that guidance?

Provisions for organisations with an ethos based on religion or belief

13.10 The Directive contains two provisions allowing us to permit differences of treatment based on a person's religion or belief which would otherwise be treated as unlawful discrimination. Both apply where there is a genuine occupational requirement that the job concerned should be held by a person adhering to a particular religion or belief.

13.11 The first - Article 4(1) - is a provision which applies generally (see chapter 9). It has effect - regardless of the nature of the organisation concerned - whenever it is "a genuine and determining occupational requirement" that a job be carried out by a person belonging to a particular religion, or holding a particular set of religious or other beliefs. So, for example, it would be a genuine and determining occupational requirement that the post of Church of England chaplain in the armed forces should be held by an Anglican Minister (as opposed to a Methodist).

13.12 The second - Article 4(2) - applies only to "churches and other public or private organisations whose ethos is based on religion or belief". It will allow such organisations to recruit staff on the basis of their religion or belief where this is "a genuine, legitimate and justified occupational requirement having regard to the organisation's ethos". So, for example, a religious organisation may be able to demonstrate that it is a genuine requirement that all staff - not just senior staff or people with a proselytising function - should belong to the religion concerned, so as to ensure the preservation of the organisation's particular ethos. Alternatively, depending on the circumstances, the exemption might apply only to a number of key posts. However, this exemption does not allow religious or belief organisations to discriminate on other grounds.

13.13 Article 4(2) also makes it clear that organisations with an ethos based on religion or belief can continue to expect their staff to "act in good faith and with loyalty to [that] ethos". So, for example, where an employee of a religious organisation conducted himor herself in a manner that was inconsistent with the organisation's ethos, disciplinary action against the employee might be appropriate where it was clear that the conduct would undermine the ethos.

13.14 We therefore propose to include in the new legislation a provision based on the wording of Article 4(2) to allow organisations which have an ethos based on religion or belief to pursue employment policies necessary to ensure the preservation of that ethos. But we do not propose to define which particular organisations will be covered by this exemption. Nor do we intend to specify the particular posts which are essential in underpinning an organisation's ethos.

13.15 Given the broad range and variety of religious and belief organisations in this country, we believe it is unhelpful to be unduly specific about which organisations and posts should be covered. Smaller organisations in particular may welcome this approach.

It will therefore be up to each organisation to consider whether they qualify as a "religious or belief organisation" and which of their posts need to be held by believers in order to preserve their ethos, particularly where ancillary or support staff are involved.

13.16 However, organisations who want to rely on these provisions would have to be in a position (where necessary) to satisfy Employment Tribunals that:

(a) they do qualify as a religious or belief organisation under Article 4(2), and

(b) their particular recruitment or other staffing policies could be justified.

The burden of proof would be on the organisation (see Part 1, paragraphs 2.16 to 2.17 of this document).

13.17 Once the new legislation is in place, we propose to consult on and issue guidance to assist religious or belief organisations, their staff and others - including Courts and Tribunals - in dealing with these issues.

13.18 You are invited to comment on the proposals outlined above. Are there particular issues here we should cover in the guidance?

Employment in religious schools

13.19 We know that many people will be interested in the position of employment in schools. The new legislation implementing the Directives will apply to them.

13.20 We are, however, committed to maintaining the position of state-maintained schools as set out in sections 58 to 60 of the Schools Standards and Framework Act 1998 ("SSFA"), which applied in England and Wales. These include provisions enabling governing bodies of schools with a religious character to employ teachers who have a commitment to the particular faith or denomination concerned.

13.21 In Scotland, education is the responsibility of Scottish Ministers. Section 21 of the Education (Scotland) Act 1980 provides that a teacher being appointed by the education authority to the staff of a denominational school must be approved by representatives of the relevant church or denominational body.

13.22 In our view, there will be no need to amend sections 58 to 60 of the SSFA. Scottish Ministers take the same view in relation to section 21 of the Education (Scotland) Act 1980.

13.23 Those sections, coupled with the proposed provision described in paragraph 13.15 above based on Article 4(2) of the Directive, will allow the governing body of a religious school - and in Scotland, the education authority responsible for a denominational school, with the approval of the church or denominational body concerned - to pursue employment policies needed to preserve the particular religious character of the school.

Disability: some specific issues

14.1 We already protect disabled people against discrimination in employment and training through the Disability Discrimination Act (DDA). However, we have always recognised that the DDA does need to be improved. That is why we proposed important changes to it in March 2001 in Towards Inclusion, our response to recommendations from the Disability Rights Task Force.

14.2 These proposals anticipated the most significant changes that will be necessary under the Employment Directive. In particular, we proposed to end in October 2004 the current exemption from the DDA's employment provisions for employers with fewer than 15 employees. Other occupational exemptions or omissions that we plan to end include barristers and their pupils, partners in business partnerships, police officers and fire-fighters and employees on board ships and aeroplanes. It is important that disabled people's access to civil rights applies across a comprehensive range of employment and occupations.

14.3 In addition, we proposed changes in Towards Inclusion which are not reflected in the Directive. The main ones are a duty on the public sector to promote equality of opportunity for disabled people and a widening of the scope of the DDA to cover most functions of public authorities not already covered by the DDA's provisions on access to goods and services.

14.4 This chapter focuses on some further changes that we will be making to the DDA. Please do take some time to read through the proposals in this chapter and let us know what you think on the enclosed questionnaire.

How will the Directive affect the DDA?

14.5 The DDA generally protects disabled people against direct and indirect discrimination, but does so in a different way from the more familiar approach in the Sex Discrimination and Race Relations Acts. It takes account of the particular nature of disability as something which is unique to each individual in their own circumstances. The DDA is very much in line with the Directive but will need some relatively small changes beyond those outlined above.

Direct discrimination

14.6 The DDA provides that unlawful discrimination will occur where a disabled person is unjustifiably treated less favourably than others for a reason related to the disability. In theory this means that an employer, for instance, could try to justify direct discrimination in the narrow sense meant by the directive - essentially treatment for reasons of prejudice ⁴ . Prejudicial treatment would arise where an employer did not employ someone simply because they were disabled, irrespective of their ability to do the job. We do not expect Employment Tribunals or Courts would accept that such treatment could be justified. But, to avoid doubt, we will be ensuring that, in line with the Directive, direct discrimination is excluded from the DDA's justification approach in the field of employment and training. Employers will still be able to justify not employing people who cannot do the job even with a reasonable adjustment.

Reasonable adjustments and indirect discrimination

14.7 The employment provisions (Part II) of the DDA also say that a reasonable adjustment should be made where an employer's arrangements or premises substantially disadvantage a particular disabled person compared with non-disabled people. Adjustments, which would take account of the disabled person's particular employment circumstances, might mean changing hours of work, meeting in an accessible office or using Braille, for example.

14.8 The DDA duty to make reasonable adjustments tackles indirect discrimination against disabled individuals. Indirect discrimination might happen where an employer has policies or practices which, although they apply equally to all employees (whether or not disabled), in fact put members of staff with a particular type of disability at a substantial disadvantage when compared with those who do not have that disability. For example, an employer might have a policy of only employing people who can use a PC keyboard. This might disadvantage some blind people. An adjustment to overcome the disadvantage in this case might be to provide voice-operated software for the employee concerned or, if PC work was a minor part of the job, to allocate the relevant work to someone else.

⁴ Part 2, chapters 4-5, of this document explains more about the terms direct and indirect discrimination.

14.9 The Directive requires member states to introduce a specific duty on employers to make what it calls "reasonable accommodations" for disabled people. This is similar to the reasonable adjustments duty which applies to employers under the DDA. We therefore have no plans to change the DDA's general approach to adjustments in the field of employment.

14.10 The Directive also provides that member states can deal with indirect discrimination by taking a reasonable adjustments approach along the lines already adopted by Part II of the DDA rather than by taking the objective justification approach explained in chapter 5 of this document. In most instances we propose to continue simply with the familiar reasonable adjustments approach in the field of employment and training. We feel that this offers effective protection for disabled individuals. However, the DDA excludes some areas covered by the Directive from the duty to make adjustments. Our proposals for covering these areas are explained below (from paragraph 14.13 onwards).

Employment services, vocational training and guidance.

14.11 Vocational training and guidance and employment services (e.g. services provided by employment agencies) are among the activities falling within the scope of the Directive. The DDA currently contains provisions prohibiting discrimination in relation to services of this type, but these will need some amendment to ensure that they reflect the Directive's requirements. Those provisions are found in:

(a) Part III of the DDA (concerning access to goods and services) which currently covers employment services and some vocational training services; and

(b) Part IV (concerning education) which deals with vocational training provided as part of further or higher education courses.

14.12 Our proposed amendments would mean that providers of vocational training or guidance or employment services:

(a) will be unable to justify direct discrimination of the type described in paragraph 14.6; and

(b) will have to make a reasonable adjustment if their premises, or arrangements for the provision of their services, substantially disadvantage a person with a particular type of disability when compared with others.

This is the same approach as that for the employment provisions (Part II) of the DDA.

Particular provisions

14.13 The DDA currently excludes a small number of pay-related issues from the duty to make adjustments. It follows that disabled people would not generally be protected against indirect discrimination in these excluded areas - which are performance pay, occupational pension and group insurance schemes (e.g. permanent health schemes such as BUPA). There is already significant protection against discrimination in each area in the DDA, but we will be tightening it to ensure that disabled people are fully protected against indirect discrimination. We do not think that the changes would be significant for employers or the pensions or insurance industry. In many cases there may be little practical difference to the way the DDA works now.

14.14 We propose to cover performance pay, occupational pensions and group insurance in one of two ways. The Directive allows us to adopt the reasonable adjustment approach described above. Or we could instead make sure that, where the rules of any of these types of scheme substantially disadvantaged persons with particular types of disability, those rules would have to be objectively justified. It may be that the reasonable adjustment approach we are retaining for the DDA generally is not suitable to the way in which these schemes actually work in practice, so we are consulting on both approaches. In addition, we need to consult on how the two approaches to indirect discrimination might apply to qualifying bodies (see paragraph 14.23).

Issues on which we want to hear your views

14.15 There are fairly technical matters which we will be discussing further with the particular industries, employer bodies, trade unions and disability organisations. In addition, there are some issues on which we would like your views as part of this consultation.

Please take some time to look at the questions below and let us know what you think on the enclosed questionnaire.

Performance pay schemes

14.16 Some disabled people might face substantial disadvantage at work affecting their performance. In turn this could affect their performance pay. However, in many cases there is likely to be a reasonable adjustment which might help improve their performance. If there is not, then the person might be disadvantaged by the terms of the scheme itself. They might simply get less money because they cannot perform to the same standard as others (although the employer might wish to continue employing them).

14.17 In your view, where there is no reasonable adjustment which could improve a disabled person's performance, and where a disabled person is then substantially disadvantaged by the operation of the scheme itself, should an employer be required to:

(a) change the scheme for the individual - perhaps paying them more for less work; or

(b) objectively justify the discriminatory aspect of the scheme (by showing that it has a legitimate aim and that the means of achieving the aim are appropriate and necessary)?

14.18 Do you have views on the way either approach might affect particular types of performance pay scheme?

Occupational pension and group insurance schemes

14.19 Employers have a role in deciding the terms on which such schemes should be provided to their employees. Managers and trustees of pension schemes and insurance companies also play an important role in allowing entry to the schemes and administering them fairly. Clearly it will be important to ensure that the duties under the DDA apply to the responsible party.

14.20 The DDA will need amending where its requirements relating to these schemes do not meet those in the Directive concerning discrimination - even if in some cases the change may have no effect in practice. In particular, the DDA currently allows employers, and managers and trustees of pension schemes, to prevent a disabled person from having access to particular benefits of a scheme if the cost of providing them would be substantially greater than for a non-disabled person. It also allows them to charge the full contributions even if the disabled person does not receive the full benefits.

14.21 In your view, where a disabled person would be substantially disadvantaged by the provision, rules or operation of such schemes, should employers, managers and trustees of occupational pension schemes and relevant insurance companies be required:

(a) to make adjustments to a scheme for the individual; or

(b) to objectively justify the discriminatory aspect of the scheme (by showing that it has a legitimate aim and that the means of achieving that aim are appropriate and necessary)?

14.22 Do you have any views on the way in which either of these approaches would affect particular occupational pension or group insurance schemes?

Qualifying bodies

14.23 These are bodies which can give authorisations or qualifications needed to help people get access to a particular profession or trade. They include bodies which issue licences to engage in an occupation or business, or bodies awarding qualifications specific to a particular profession, such as the Pensions Management Institute. We will be ensuring that all qualifying bodies are covered by the DDA employment provisions, except to the extent that they are already covered by the provisions of the DDA applying to further and higher education institutions.

14.24 In your view, should qualifying bodies - whether covered by the employment or education provisions of the DDA:

(a) be able to maintain academic and other particular standards if they can objectively justify them; and

(b) be required to adjust other aspects of the relevant work of qualifying bodies - such as the means of course delivery and assessment like course materials, seating in exams or time limits - if it is reasonable to do so? (Any qualifying bodies which are FE and HE institutions would already have to do this under the education provisions of the DDA.)

14.25 Do you have any views on the way in which these approaches would affect particular qualifying bodies?

Age: some specific issues

15.1 We intend to legislate to tackle age discrimination at work and in training. We cannot afford the substantial cost of discriminatory age practices to individuals or to the wealth of the nation.

15.2 This first consultation paper on age concentrates on identifying and inviting views upon the key issues. Because of the complexity of age discrimination issues, we intend to introduce age legislation on a longer timetable than equivalent legislation on sexual orientation and religion or belief. For the same reason we will undertake a second age consultation exercise in the second half of 2002. The second consultation will build on this one by consulting on a set of firm proposals for action with a view to implementing the age provisions of the Employment Directive before the end of 2006.

What is age discrimination in the workplace?

15.3 Age discrimination in the workplace exists when decisions are made on matters related to training or employment that are based on a person's age rather than her/his skills and ability to do the job. It leads to assumptions about younger and older workers that create and perpetuate inappropriate recruitment, selection, training, promotion and retirement practices. In tandem with developing legislation, we plan to increase promotional activities to change attitudes on age in the workplace and to challenge the unthinking prejudice that blights lives and is so costly to our economy.

15.4 We need to be clear about what we are trying to achieve with legislation. We want to identify and prohibit what is unfair practice based on discriminatory attitudes or inaccurate assumptions, so as to remove the barriers which people of all ages face if they want to work. But we recognise that there may be differences of treatment or exceptions on the grounds of age that are justified. We do not want to outlaw initiatives which improve the opportunities for people to enter or return to work or training, through New Deal initiatives for example. Nor do we want to ban employment practices which can be clearly and objectively justified.

15.5 Article 6 of the Directive provides the flexibility needed to permit and justify a difference of treatment based on age. It contains an illustrative list of the types of differences of treatment that may be justified, including:

(a) special conditions on access to employment and vocational training for particular categories of people in order to promote their vocational integration or to ensure their protection;

(b) minimum conditions of age, experience or seniority for particular advantages;

(c) a maximum recruitment age based on the training requirements of the post.

15.6 However, any differences of treatment on the grounds of age (including those referred to above) will only be deemed as "non-discriminatory" if they are objectively and reasonably justified.

15.7 A key goal of this consultation is to identify which types of treatment are acceptable and which are not. It is important for us to hear what you think. We need to gain the views of as many people as possible - from businesses, employees (both in work and prospective), and all relevant organisations, so that we can develop effective and proportionate proposals for legislation to combat age discrimination.

Issues on which we want to hear your views

15.8 Please do take some time to read through the proposals in this chapter and let us know what you think on the enclosed questionnaire.

Direct and indirect age discrimination

15.9 As discussed in chapters 4 and 5 of this document, discrimination can be either direct or indirect. We believe that a proper understanding of concrete individual experiences can assist us frame laws and guidance to tackle age discrimination effectively.

15.10 Have you suffered age discrimination at work? Or have you witnessed anybody else suffering age discrimination at work? If so, we would like to hear about it - the form it took, what makes you believe it was age discrimination, the effect it had and what you think might help prevent such discrimination happening again.

Recruitment, selection and promotion

15.11 Refusing to employ or promote someone on the grounds of their age will be outlawed except where there are justifiable reasons for the refusal ⁵ . Can it ever be justified, for example, for an employer to specify a minimum or a maximum age of recruitment for a job? If so, in what circumstances? And for what kind of jobs might such exceptions be justified? For instance, are there occasions when, for good reason, an individual of a given age should not be recruited on the grounds of training costs?

15.12 Recruitment schemes which focus wholly or mainly on one age group to the exclusion of others could be perceived as indirectly or directly discriminatory on grounds of age. Do you consider such schemes to be justifiable? If so, in what circumstances would you regard them as being justifiable? For example, what are your views on graduate recruitment schemes?

15.13 Refusing to consider somebody for promotion solely because of his or her age would be prohibited unless the new legislation allows for this to be justified. Do you think it should do so? If so, in what circumstances? Please let us know with your reasons.

Training

15.14 Preventing someone from taking part in training simply because of his or her age will be outlawed under the proposed legislation. There is scope under the Directive to make exceptions to this general rule. An exception might, for example, include any situation in which the cost of training would be unreasonable when set against the amount of time that person would spend working for the organisation. Would you support such an exception?

For instance, would you prevent an employee from attending a training event because they were due to retire shortly? Can you think of any circumstances where exceptions should be made?

⁵ The Employment Directive allows for service in the armed forces to be specifically excluded from legislation implementing the age provisions. We intend to rely on this exemption.

Occupational requirements

15.15 The Directive provides for narrowly defined exceptions to be made where it is a requirement for a post to be occupied by someone of a particular age. One example might be a requirement for child actors to play the parts of children in, say, a performance of "Oliver". Can you suggest other examples of work or training where age could be legitimately considered a genuine job requirement?

Pay & non-pay benefits

15.16 Legislation outlawing age discrimination at work would disallow pay or non-pay benefits based wholly or partly on chronological age. Again, there could be justifiable exceptions. It is possible that benefits related solely to length of service (for example, an extra 5 days holiday once you have been working for the company for 10 years) might be regarded as indirectly discriminatory. Do you know of any pay or non-pay practices that might be considered discriminatory for either younger or older workers? If so, are there sound reasons to justify continuing these practices?

15.17 Annual incremental pay might be regarded as a justified exception to reflect experience and reward loyalty to an employer. Do you agree?

Redundancy

15.18 At present, many employers offer attractive voluntary redundancy packages based on age or length of service. Can this more favourable treatment be justified? If so, in what circumstances?

Retirement

15.19 At present, employers can fix their employees' retirement age. This is normally in the range of 60-65. Legislation on unfair dismissal (the Employment Rights Act 1996) does not apply when an employee is asked to retire upon reaching normal retirement age. In contrast, some countries with existing laws against age discrimination at work have banned entirely the use of compulsory retirement ages. Other countries have made retirement age an exception.

The new legislation will not affect the operation of occupational pension schemes. Article 6(2) of the Employment Directive makes it clear that fixing ages of admission for such schemes and, in this context, the use of age criteria in actuarial calculations should not be regarded as age discrimination.

(a) Do you think employers should be able to require people to retire at a certain age?

(b) If so, do you think there should be any legal limits placed on their right to do so?

(c) What concerns, if any, do you have about current retirement practices?

(d) In your opinion, what would be the advantages and disadvantages if there were no fixed retirement age?

Conclusion

15.20 We have aimed to identify on several key issues in relation to age discrimination at work and in training. It is important that we hear your views on these issues. If you are aware of other circumstances or situations where age legislation could have an effect in employment of vocational training, please let us know.