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Paul Menham of law firm Gordons outlines what the Employment Equality Regulations 2003 mean for employers and staff
Employment Equality Regulations 2003
The Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 came into force on 1 and 2 December 2003. Effectively, both mirror the provisions of the existing sex and race discrimination legislation and both sets of regulations outlaw direct and indirect discrimination.
What does this law mean?
In brief, it means that employers are prevented from treating their staff less favourably than other staff on grounds of sexual orientation or religious belief. In addition, harassment on these grounds is prevented under the regulations.
Many employers will have existing best practice procedures and policies on sexual discrimination, in which case the new regulations will not be alarming. However, employers may find the religion or belief regulations more challenging, as they will require some thought of how best to amend policies and procedures to comply with the legislation.
What's included under the Employment Equality (Sexual Orientation) Regulations?
The regulations make it illegal for employers to discriminate against straight, gay or bisexual employees. Fetishes or other sexual preferences are not covered by the legislation. However, employers should take care when considering these grounds, and ensure the ‘fetish' in question is not covered.
Any harassment on grounds of sexual orientation is covered by the regulations, even where this is inaccurate. Should a colleague make a complaint that they have been discriminated against because of their sexual orientation, employers should investigate and take appropriate action, which may include disciplining the relevant employees. Failure to do so may result in the employers and individual employees in question facing a tribunal claim for unlawful discrimination.
Company benefits available to married couples, such as private healthcare, do not have to be extended to same sex couples, because the difference is based on their marital status and not their sexual preference. However, you do need to ensure that if benefits are provided to unmarried, different-sex couples, the same benefits are available to same-sex couples.
If employers treat an individual less favourably than others, only as a result of their sexual orientation, this would be classed as discrimination unless there was a legitimate business reason and occupational requirement. For instance, it would be legitimate not to recruit a homosexual if a role required someone who can provide sex counselling to married couples.
What's included under the Employment Equality (Religion or Belief) Regulations?
The regulations make it illegal to discriminate in matters of employment and vocational training on the grounds of religion or similar beliefs.
Indirect discrimination is also prohibited, whereby an employee with a particular religion or belief is disadvantaged over another employee. For example, if a member of staff failed to be considered for promotion as he did not bond with his boss at the weekly drinks parties, which conflicts with the employee's religious beliefs, then the company's treatment of him would be discriminatory unless there was a legitimate business reason for him not being considered.
In circumstances where employers need to treat job applicants differently on grounds of their religion or belief, there are two exceptions to discrimination. First, where being part of a religion or belief is part of the job, such as the recruitment of a bishop; and second, where the company culture has an ethos based on religion or belief. In this instance, there must be a genuine occupational requirement for the job, such as a Catholic school wishing to recruit a Catholic teacher.
Many companies will include some form of dress-code guideline within employee contracts, but employers should be mindful that some religions require women to wear particular styles of jewellery or to dress modestly. However, if dress code rules are in place for health and safety reasons or to reflect a good image to clients, they will probably be lawful, as businesses will probably be able to justify them in an objective manner. Employers should be flexible to allow employees to dress in accordance with their religious beliefs and adhere to the dress code wherever they can.
Some employers will need to consider their employee's prayer times and religious observance. The Working Time Regulations allow all staff to take no less than four weeks annual leave and a break of at least 20 minutes where they work for at least six hours per day. Staff may request that annual leave and rest breaks coincide with prayer times and festivals, and employers may justify a refusal only where these conflict with legitimate business needs that cannot be justified in another way.
If additional prayer breaks are required, employers should take into account the legitimate needs of the business in deciding whether or not to allow them, but flexibility assists the morale of a workforce and employers may consider that a prayer break involves no more disruption than a coffee or smoking break. Where employees are allowed breaks for smoking, it would be difficult to justify a refusal of a prayer break, provided this was for a similar length of time.
What do employers need to do?
Ensure all staff are aware that it is unlawful and unacceptable to discriminate on the grounds of sexual orientation or religion and that this behaviour will not be tolerated.
To ensure the legislation is covered within company guidelines and policies, these should be updated and distributed to all staff. Disciplinary and grievance policies may need updating to ensure staff are aware of the behaviour that is expected of them, and make employees who believe they have been discriminated against aware of the complaints procedure.
Companies may need to consider staff awareness training, particularly for managers, who may be unaware that what they are doing indirectly breaches the legislation.
While it is not a legal requirement, a properly drafted equality policy will inform all staff of your organisation's policy on discrimination in the workplace and set out the consequences of a breach of the policy. It will inform employees of how to complain if they believe they have been discriminated against, and may assist your organisation in defending a claim brought by an employee who believes they have been discriminated against.
Paul Menham is a solicitor in the employment law team at Yorkshire law firm Gordons.