Managing diversity: legislation

The law relating to equality is ever expanding and we will continue to see layers of amendments to existing legislation as well as new directives and regulations from both the UK Government and the EU.

Before we explore the various legal obligations of employers, it is worth clarifying some of the legal jargon that has become associated with equality and diversity practice (see below). In addition, it is helpful to explain what this means in practice for an employer. (A full glossary of terms is included in Section 8 ).

Sex Discrimination Act (1975)

What areas of discrimination are covered?

The Sex Discrimination Act (SDA) covers discrimination (including harassment and victimisation) on the grounds of:

The legislation applies in England, Scotland and Wales and very similar legislation operates in Northern Ireland.

What are the implications for employers?

The SDA covers virtually all employment practices and policies including

It is becoming increasingly rare for employers to carry out overt and obvious acts of discrimination. However, particularly around the areas of recruitment, selection and promotion, care needs to be taken to ensure that subtle discrimination is not taking place within policies and procedures. For example, asking a prospective female employee what arrangements she will make for childcare arrangements is not recommended as good practice and could leave the employer to face claims of discrimination on the grounds of sex.

Many employers overlook the requirements regarding the protection from discrimination for individuals undergoing gender reassignment.

It is important to remember that the legislation protects individuals who. . .

Case study

Vento v Chief Constable of West Yorkshire Police

Background

Vento joined West Yorkshire Police as probationary officer in 1995.

Following the breakdown of her marriage, she alleged an 'unwanted interest' in her private life from fellow police officers and that she was bullied and sexually harassed.

Vento was not offered a permanent post at the end of her probation period and was subsequently dismissed.

Vento claimed she had been discriminated against on the grounds of sex. The employment tribunal upheld her complaint, finding that a hypothetical male probationer in the same position would have been offered a permanent position.

Outcome

The initial award of £257,844 for loss of earnings, injury to feelings, aggravated damages, personal injury and interest was slightly reduced - after an appeal to the Employment Appeal Tribunal and cross appeals - by the Court of Appeal in 2002.

Race Relations Act (1976)

Which areas of discrimination are covered?

The Race Relations Act (RRA) covers discrimination (including harassment and victimisation) on the grounds of:

What are the implications for employers?

The RRA covers virtually all employment practices and policies including:

Although the RRA covers some religious groups it does not cover religious groups and beliefs overall. New legislation (outlined later) will be introduced in December 2003, to outlaw discrimination on the grounds of faith or religious belief.

The introduction of the Race Relations Amendment Act (2000) does strengthen some of the employers obligations within the public sector. However, when a public body makes arrangements with a private body to carry out some functions, these responsibilities are extended to the private sector company.

Case Study Example

Nagra v. Ford Motor Company (1992)

Background

Nagra worked at the Dagenham plant since joining Ford in 1988.

A previous race case at Ford had resulted in a 'zero tolerance policy' towards racism across all Ford sites and covering all employees.

Nagra made a claim of race discrimination after suffering 'from an extremely hostile and hell-like environment, with racial abuse, discrimination and threats of physical violence'.

Nagra claimed typical incidents such as:

Outcome

The Employment Tribunal described Ford's 'zero tolerance policy' as an 'empty gesture compounded by failure to punish those responsible.'

The tribunal upheld the complaint stating that Ford had behaved in a high handed and oppressive manner.

Nagra was awarded £149,000 compensation for suffering three years of racist abuse and intimidation.

Race Relations Amendment Act (2000)

What areas of discrimination are covered?

The new Act now strengthens the RRA 1976 in two main ways:

What are the implications for public authority employers?

As a direct result of the amendments, listed authorities should have due regard not only to eliminating unlawful discrimination, but should positively promote good race relations and race equality.

Any policies or practices should not disadvantage any racial groups.

Where a public body arranges for work to be undertaken by a private or voluntary body, these contractual arrangements should also reflect these additional obligations.

Public authority employers also need to:

These requirements are applicable to the majority of public authorities, and will, for example, include the higher education sector.

The employer is vicariously liable in that they may be legally responsible for any discrimination that occurs in the workplace, or in connection with the workplace, unless they can show that reasonable steps have been taken to reduce this liability.

Any victim of discrimination or harassment has a legal redress and can pursue their claim in a court of law.

Should the public authority not meet the expected standards under the Race Relations Amendment Act 2000 (RRAA), it may be subject to an investigation by the CRE. This could result in:

Litigation activity relating to the RRAA is still in the development stages although the early signs are that much work still needs to be done across some public bodies to meet the additional requirements to promote good race relations and to report on ethnic monitoring data.

DISABILITY DISCRIMINATION ACT (1995)

What areas of discrimination are covered?

The Disability Discrimination Act 1995 (DDA) is applicable to the whole of the UK and applies equally to those individuals who are disabled at job application stage as well as those who become disabled through the course of employment. The law makes it unlawful to discriminate or treat anybody less favourably on the grounds of disability, where the employer cannot show that the treatment in question is justified.

The definition of disability under the DDA is: "A person has a disability if he/she has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities."

'Physical or mental impairment' is not specifically defined under the Act, but confirmed examples include multiple sclerosis, arthritis and any mental impairments as listed by the World Health Organisation.

'Long-term adverse effect' is generally taken to mean that the effect of the disability has lasted 12 months or will do so in the future. Recurring conditions are also classed as long-term.

'Ability to carry out normal day-to-day activities' relates to mobility, dexterity, physical co-ordination, continence, ability to lift and carry, speech, hearing, eyesight, memory or ability to concentrate and learn. A key test is to concentrate on what an individual cannot do as opposed to what they are able to do.

What are the implications for employers?

It is unlawful for an employer to discriminate against a disabled person on the grounds of their disability in the following areas:

The employer has a duty to make 'reasonable adjustments' for both potential and existing employees to ensure that an individual with a disability is not disadvantaged. This will be necessary during the process of selection arrangements and to enable an individual to undertake their normal day-to-day jobs.

Defining what constitutes a reasonable adjustment is frequently debated at and decided by employment tribunals. Best practice would suggest that consulting with the individual employee is the ideal way to establish what is 'reasonable' from their perspective, in conjunction with the results of a workplace assessment.

Employers need to be creative when it comes to establishing reasonable adjustments, and in some cases, very simple adjustments work considerably better than large projects with considerable expenditure. Typical examples could include:

The majority of reasonable adjustments incur small expenditure and for large organisations in particular, trying to argue the business justification for not making workplace adjustments is both bad practice and very difficult to defend at employment tribunals.

Case Study Example

Abbott v. Waltham Forest Education Authority (2000)

Background

Liz Abbott was a teacher of 25 years and was employed at a Primary School in 1996. Abbott was registered blind.

Her classroom assistant resigned when her working hours had been significantly reduced.

The Local Education Authority did not find a replacement and Abbott was forced to resign in 1996 due to high levels of stress, caused by the increase in workloads.

The Employment Tribunal stated that "Abbott had become a burden to her employers and one they no longer wished to bear".

Outcome

Abbott brought an action under the DDA and was supported by her Union and the Royal National Institute for the Blind.

The tribunal found that Abbott had been discriminated against on the grounds of her disability and was paid £60,000 compensation plus £20,000 costs.

Special Educational Needs and Disability Act (SENDA)

The requirements of the Disability Discrimination Act have been extended to include education provision from September 2002. The enhanced legislation protects disabled students in all areas of their studies and expects establishments:

Interestingly, SENDA expects institutions to take reasonable steps to find out if students have a disability, and to anticipate any adjustments that may have to be made in the future provision of learning and education.

Auxiliary aid adjustments and physical feature adjustments will not be required until September 2003 and September 2005 respectively.

Harassment and Bullying

What is the difference between harassment and bullying?

There are a number of definitions available to establish the differences between harassment and bullying. Two typical definitions are:-

Harassment: Conduct which is unreasonable, unwelcome and offensive, which creates an intimidating, hostile or humiliating environment. It may be persistent, or an isolated incident, and will be unacceptable to the person on the receiving end of it.

Bullying: Offensive, intimidating, malicious or insulting behaviour or an abuse or misuse of power which undermines, humiliates, denigrates or injures the person on the receiving end of it.

What legislation applies to harassment and bullying?

Within the UK, case law has established that harassment is a type of direct discrimination, usually based on the victim being able to show that the unwanted behaviour or actions caused injury to feelings. The majority of harassment cases are dealt with through the Sex Discrimination Act, Race Relations Act and the Disability Discrimination Act.

However, practitioners need to be aware of other potential action routes that alleged victims could pursue.

Forthcoming Legislation

There is a plethora of legislation and directives within the equality and diversity area and it is likely that this will continue to increase as both the UK Government and the EU continue to raise the profile of this key area.

The following areas will be introduced over the next few months and years, which will once again strengthen the protection that individuals have from this area.

What legislation is anticipated and when?

The Employment and Race directives were adopted under the Article 13 of the European Commission Treaty in 2000.

The key areas that impact on the UK will be introduced at the following times:

It should be noted that throughout these directives there is a significant change regarding the burden of proof in discrimination cases. Once implemented there will be a requirement for employers to establish that their actions were not discriminatory. This has already been the case under the Sex Discrimination Act in the UK since 2001, and will apply to amendments under race and disability legislation. The new areas of age, sexual orientation and religion will have similar provisions, built-in from the outset.

What will be the impact on employers under the Article 13 directives

At the time of writing, the legislation is still being finalised, but through the consultation process the Government has undertaken, it is understood that the following areas will be key issues for HR and diversity practitioners.

Sexual Orientation

Purpose

The directive will make it unlawful to discriminate against an individual during employment and training on the basis of their sexual orientation. A person's sexual orientation will generally not have any bearing on their ability or suitability to do their job. This directive is an important step forward in protecting employees from unfair treatment, and will also class harassment and victimisation of an individual on the grounds of sexual orientation as potential direct discrimination. A TUC survey in 2000 suggested that nearly 44 per cent of gay men and lesbians have experienced discrimination and harassment at work.

Issues for Consideration

Company policy regarding occupational pension schemes needs to be examined. When the rules restrict benefits to opposite sex partners only this is likely to amount to direct discrimination.

The company harassment policies will need to be updated to ensure employees are aware that harassment on the grounds of sexual orientation is unlawful and classed as direct discrimination.

The scope of this directive includes pay and working conditions. The term pay will include all types of remuneration such as group health private insurance. The directive will therefore make it unlawful to discriminate in relation to any compensation and benefits policy.

A Kinsey survey in 1999, found that nearly 1 in 11 of the UK population was either gay, lesbian or bisexual. Based on this data, this directive will offer additional legal protection to a considerable proportion of the UK workforce.

Disability Discrimination Act Amendments

Purpose

By extending the provisions of the Disability Discrimination Act, the amendment will ensure that current exemptions from the Act's employment provisions are ended - ie, for employers with less than 15 employees and certain practices and professions.

At the same time (but not as a result of the directive), there will be both a greater duty on public authorities to promote equality of opportunity for disabled people and widening of the scope of the DDA to cover most functions and public authorities.

Issues for consideration

The Government is consulting on some additional (sometimes technical) issues with particular industries and bodies. Greater detail regarding these areas can be obtained by contacting the appropriate bodies listed in Section 7 .

Age Discrimination

Purpose

The Government is committed to outlawing age discrimination in the UK by 2006. The complexity of some of the age discrimination issues has led to the longer timetable for introduction, but it will nevertheless aim to tackle discrimination in employment and training for all employees. It is worth noting that this proposed legislation will cover the whole age spectrum, and not be merely for the protection of the older worker.

Issues for consideration

Employer best practice will be to remove any reference to age or date of birth from any selection and recruitment procedure. Already some leading organisations (Nationwide, Halifax, B&Q) remove this irrelevant data from application forms, and Nationwide conducts interview screening over the telephone to prevent any judgements based on attitudes to age.

Internal promotion, and fast-track schemes should not lay down specific age groups of people who are considered eligible. In a lot of cases this is bad practice anyway as schemes with age parameters can indirectly preclude women applicants at a particular age who may be on maternity leave.

Ensuring individuals have equal access to training and development will prevent instances of older employees being neglected for skills development activity.

Some leading employers (Marks & Spencer and Asda/Walmart) have already scrapped traditional retirement age policies, and in some cases let their employees continue to work into their 70s or even 80s. It is interesting to note that some EU countries have completely banned compulsory retirement ages.

Religious Belief or Faith

Purpose

This directive will ensure that direct and indirect discrimination together with harassment on the grounds of religion or belief will be unacceptable and unlawful. This directive will extend across employment, self-employment, occupational and vocational training.

At this stage the definition of what constitutes a religion or belief is still being debated, and it is anticipated that prescriptive guidance will not be given, to enable the courts to resolve definitional issues as and when they arise. It is understood, however, that 'belief' will not extend to political belief.

Issues for consideration

Employers will have to consider issues such as diet, dress and religious observance. While it is not anticipated that employers will have to put specific arrangements in place for these areas, they will have to avoid rules which discriminate either directly or indirectly on the grounds of religion or belief.

By not granting leave for religious observance employers may not necessarily be operating against the directive, but they do need to manage requests carefully so as not to disadvantage groups or individuals.

It is hoped that more detailed practical guidance will be available towards December 2003, and in the meantime employers will operate a consultative and fair approach to all religious groups which do not work to the detriment of individuals, groups or the business.

There will be some provisions within the legislation to allow organisations which have an ethos based on religion or belief to pursue employment policies which preserve the ethos of that belief, eg, there is an occupational requirement that the post of Church of England chaplain in the armed forces should be held by an anglican minister.

Terminology - at-a-glance guide to common legal phrases

Additional legislation

While the majority of UK litigation cases fall into the main areas described, there are additional elements of legislation and directives that employers need to be aware of: