equality law update

Equality and diversity law update: 

Equality and diversity law update Jackie Rymell, Assistant Director, Human Resources, University of Sussex, June 2004

University’s Equalities Unit: 

University’s Equalities Unit QUESTIONS? Please: Email us at equalities-unit@sussex.ac.uk or phone Liz Burchett on 7602 or Andrew Wilkey on 6525 We are based in Sussex House, Room 325

Introduction: 

Introduction Fundamental changes to discrimination law Expanding scope of discrimination law Summary of legislation relating to sexual orientation and religion/belief Changes in disability legislation Age discrimination legislation – 2006 New draft code of practice on Racial Equality in Employment New rights for same sex couples Trans-Gender equality Single equality body

Fundamental changes to discrimination law: 

Fundamental changes to discrimination law Direct discrimination – unchanged Indirect discrimination – wider definition Harassment – unlawful, new definition Burden of proof – importance of record keeping, transparent decision making etc Post-employment discrimination e.g. references Time-bounded questionnaires for ET – 8 weeks

Expanding scope of discrimination law: 

Expanding scope of discrimination law Traditional areas: Sex and equal pay Race Disability New areas: Part-time workers Fixed-term contracts Agency workers Sexual orientation Religion/belief Age

Discrimination on grounds of sexual orientation and religion/belief: 

Discrimination on grounds of sexual orientation and religion/belief 2 sets of almost identical regulations: The Employment Equality (Sexual Orientation) Regulations 2003 The Employment Equality (Religion or Belief) Regulations 2003 ACAS and ECU guidance on both (see E and D website) Protection from discrimination in employment and vocational training Generally follow established tests of unlawful discrimination developed under SDA(1975) and RRA (1976)

Employment Equality (Sexual Orientation) Regulations 2003: 

Employment Equality (Sexual Orientation) Regulations 2003 Definition of sexual orientation – orientation towards persons of: The same sex (gay) The opposite sex (heterosexual) The same and opposite sex (bisexual) Genuine Occupational Requirements (GOR) – very limited i.e. must be essential requirement, but exception for organised religion

The Employment Equality (Religion or Belief) Regulations 2003: 

The Employment Equality (Religion or Belief) Regulations 2003 No definition of religion/belief More than just opinions or deeply held feelings some guidance from other areas of law – holding of spiritual or philosophical convictions with identifiable formal content E.g. Druidism, Veganism, Atheists, Agnostics

Areas of discrimination covered by the Regs: 

Areas of discrimination covered by the Regs discrimination on the grounds of: Perception of individuals Discrimination by association Discrimination due to a personal conviction Direct discrimination Indirect discrimination Victimisation Harassment Burden of proof Post-termination discrimination

Employment Implications: 

Employment Implications Job applicants: In arrangements for deciding to whom employment should be offered In terms on which employment is offered By refusing to offer employment Employees: In terms of employment granted In opportunities for promotion, transfer, training or any other benefit Dismissal or any other detriment Contract workers Post-employment discrimination

Practical advice: 

Practical advice Dress – where uniform is required, possible issues if conflicts with religion/belief; discriminatory slogans or symbols not allowed; special provision to exempt Sikhs from wearing safety hats on construction sites Religious observance – reasonable efforts e.g. flexibility in working hours; sympathetic response to leave requests for religious festivals, provision of space for prayer where practicable, appropriate training venues Recruitment and selection – interview times, sensitivity re different types of behaviour Food requirements Ensure managers are trained/aware

Changes in disability legislation: 

Changes in disability legislation Disability Discrimination (Blind and Partially Sighted People) Regs 2003 – April 2004 DDA Part 3 – providers of goods and services to the public – final phase – Oct 2004 – physical access Disability Discrimination Act 1995 (Amendment) Regulations 2003 – Oct 2004

Disability Discrimination Act 1995 (Amendment) Regulations 2003: 

Disability Discrimination Act 1995 (Amendment) Regulations 2003 Implement EU Equal Treatment Directive Unlawful acts: Direct discrimination – cannot justify less favourable treatment because of the person’s disability Failure to make reasonable adjustments Harrassment Victimisation Burden of proof Disability questionnaire

Further disability legislation: 

Further disability legislation Draft Disability Discrimination Bill Parliamentary scrutiny during 2004 Planned to come into force in 2005 Amends definition to include HIV, MS and cancer Duty on public authorities to take action to: Eliminate unlawful discrimination Promote equality of opportunity DDA part 3 (goods, facilities and services )to be amended to cover transport DRC to produce codes of practice and guidance

Age discrimination legislation – 2006: 

Age discrimination legislation – 2006 Code of Practice on Age Diversity in Employment – launched 1999, updated Dec 2002 – 6 elements (recruitment, selection, promotion, training/development, redundancy, retirement) Age discrimination legislation – 1 October 2006 Direct Discrimination – specific aims defence Covers employment and training Mandatory retirement ages – still under consideration, possible default statutory retirement age of 70 Occupational pension schemes likely to be exempt Statutory employment rights

New draft code of practice on Racial Equality in Employment: 

New draft code of practice on Racial Equality in Employment Consultation ends August 2004 Very detailed (100 pages) Will be taken into account by ETs Guidance on +ve action, ethnic monitoring and racial equality policies

Rights for same sex couples: 

Rights for same sex couples Civil Partnership Bill – currently with House of Lords, Royal Assent expected Nov 2004, implementation planned for early 2006 New legal relationship for same sex couples – will affect pension benefits

Trans-Gender equality: 

Trans-Gender equality SDA covers transsexuals (Sex Discrimination (Gender Reassignment) Regs 1999) Recent case (HL) confirmed that GOQ defence under SDA is limited Gender Recognition Bill 2004 – legal right to change sex and marry ECU guidelines due out next week

Single equality body: 

Single equality body Commission for Equality and Human Rights (CEHR) Govt White Paper – consultation ends 6 Aug 2004 Unlikely to be in place before end 2006 No plans for single equality act