new rules on discrimination
The problem
A new employee has asked to have six weeks' leave early in the new year, extending her four weeks' paid entitlement with two weeks' unpaid leave. She says she wishes to go on a pilgrimage, or hajj, to Mecca with her family. January is usually a quiet time of year, but you don't want to set a precedent. You certainly don't want the annual pay rise to apply to her if you have to grant her request.
With effect from the beginning of December, anti-discrimination legislation has been extended to protect employees and contract workers from less favourable treatment on the grounds of their religion or belief or their sexual orientation. Both direct and indirect discrimination are prohibited, and the protection extends to employees and workers irrespective of their length of service.
EXPERT ADVICE
Adopting a blanket policy that extended leave requests will not be granted would not be directly discriminatory. However, such a practice may disadvantage people of a particular religion, in this case Muslims. It would be discriminatory unless it can be objectively justified.
Refusing to consider the request at all might result in an award for damages being made against your business. Unlike unfair-dismissal awards, there is no maximum amount of compensation for claims of discrimination.
If you consider the request, but have objective business reasons for refusing it - for instance, because it is a particularly busy time of year for your business or due to other staff being on maternity or other extended periods of leave - you will have a defence to such a claim. You should meet with the employee to explain your reasons for refusing her request.
If you allow the request but refuse to apply an annual pay increase because of your employee's pilgrimage, this would be a detriment because of her religion. It would be directly discriminatory.
Once a difference in treatment is established by the employee, the burden of proof shifts to the employer to show that the difference in treatment was for a reason that was not discriminatory. She may also have an equal-pay claim if she was paid a different amount from male colleagues with no objectively justifiable reason.
CHECK LIST
It is always advisable to check your policies and procedures regularly and update them to ensure they are in line with current legislation.
With regard to the sexual orientation and religion or belief regulations, you should look at the following policies to ensure they take account of the new law:
Time off for bereavement - different religions have different requirements.
Policies relating to holiday or special or unpaid leave.
Dress codes - for example, some items of jewellery have great significance to people of some religions.
Equal opportunities, with particular regard to recruitment and selection, and harassment policies.
Disciplinary and grievance procedures.
Train and educate your staff. Policies alone are not enough - employees must know what rules apply to them, and managers must be aware of issues that might arise and how to deal with them.
BEWARE!
Discrimination or equal-pay claims can be costly to defend. Awards can reach several hundred thousand pounds. Individuals can be personally liable as well as the employer. Above all, they create negative publicity, which can damage workforce relations as well as damaging the employer's goodwill.
CONTACTS
Jacqie Carr Taylor, employment department, Blandy & Blandy, 0118 951 6859, jacqie_carrtaylor@blandy.co.uk
The arbitration service Acas has published guidances on the new regulations which provide useful clarification of how the new law is likely to be applied, www.acas.org.uk
The Equal Opportunities Commission has brought out a new Code of Practice on Equal Pay, which also came into force at the beginning of December, www.eoc.org.uk
