Please can you replace this document, as it was sent out in error, with the
attached.
Many thanks
Erica
Erica Halvorsen
Policy Adviser
Equality Challenge Unit
3rd Floor
Tavistock Place
London WC1H 9RA
Tel: 020 7520 7065
Fax: 020 7520 7069
Website: www.ecu.ac.uk
-----Original Message-----
From: Susanna Hancock [mailto:[log in to unmask]]
Sent: Friday, September 12, 2003 10:16 AM
To: [log in to unmask]
Subject: Re: Update on Equality and Diversity Legislation
Hi, Mannie, can't open it either!
Susanna.
Susanna Hancock
Equal Opportunities Manager
Human Resource Services
Middlesex University
Trent Park, Bramley Road
London N14 4YZ
Telephone: (+44) 020 8411 6873
Mobile phone: 07946 411874
Email: [log in to unmask]
**********
The Equality Challenge Unit promotes diversity and equality of opportunity for all who work or seek to work in higher education. We are sponsored by the representative bodies (SCOP and Universities UK) and the four UK HE funding bodies.
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11 September 2003
09/03
Erica Halvorsen
Tel: 020 7520 7065
Email: [log in to unmask]
Equality and Diversity: Update on External Requirements
This paper summarises the new developments in equality and diversity legislation and notes the
aspects of it to which HEIs will need to pay immediate attention.
Introduction
1. Over the next three-year period to December 2006 further equalities legislation is to be
introduced in the UK and existing provision will be amended. In accordance with
European Directives, domestic legislation has to be enacted in the previously disregarded
areas of sexual orientation, religion or belief and age. Existing legislation relating to race,
sex and disability has been, and will be, adjusted to comply with the requirements of the
Directives. This paper provides an overview of new and forthcoming equalities legislation,
areas of commonality between Acts and Regulations and suggestions for integrating
legislative requirements into institutions’ policies and procedures.
2. The new regulations will build on existing provision. They should not be difficult for HEIs
to effect given the equal opportunities measures that are already in place and the
reappraisal of systems and procedures that has recently been undertaken (for example in
respect of disability, race, and fixed and part-time contracts).
Background
3. Article 13 of the Treaty of Amsterdam gave the Council of the European Union powers to
‘take appropriate action to combat discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation’. In pursuit of this objective the
following were passed:
? 2000/43/EC implementing the principle of equal treatment between person of racial or
ethnic origin (the ‘Race Directive’);
? 2000/78/EC establishing a general framework for equal treatment in employment and
occupation (the ‘Employment Directive’) and
? 2002/73/EC amending 76/207/EEC on the implementation of the principle of equal
treatment for men and women as regards access to employment, vocational training
and promotion, and working conditions (the ‘Equal Treatment Directive’).
4. The Race Directive was translated into UK domestic legislation on 19 July 2003 when the
Race Relations Act 1976 (Amendment) Regulations came into effect.
5. The Employment Equality (Sexual Orientation) Regulations 2003 will come into force in
the UK on 1 December 2003 and the Employment Equality (Religion or Belief)
Regulations become law on the following day. The Disability Discrimination Act 1995
(Amendment) Regulations 2003 will not take effect until 1 October 2004 and legislation
outlawing discrimination on grounds of age will be introduced in October 2006. These
statutes will ensure the UK’s compliance with the equality dimensions of the Employment
Directive.
6. In addition, amending regulations will ensure that the Sex Discrimination Act 1975
complies with the Equal Treatment Directive by 5 October 2005.
7. A table summarising this timetable is at the end of this paper.
Scope of the legislation
8. All three Directives extend to ‘vocational training’ expressly and case law from the
European Court of Justice suggests that ‘vocational training’ includes most higher and
many further education courses. Therefore, the UK legislation extends protection against
discrimination to students in further and higher education, which places additional
responsibilities on HEIs in the revision of their policies and procedures. There is,
however, the advantage that the new equality measures are thus exactly aligned with
those already existing for disability and race.
9. Due to the relatively recent revision of race legislation in the UK, through the Race
Relations (Amendment) Act 2000, only relatively minor amendments had to be made to
existing provision to comply with the European Race Directive. Similarly, the Sex
Discrimination Act will not be greatly altered by the requirements of the Equal Treatment
Directive. The greatest change to existing law will be made to the Disability Discrimination
Act to ensure its compliance with the Employment Directive. The new legislation
concerning religion or belief, and sexual orientation will be broadly similar in structure and
form to the Sex Discrimination Act 1975 and the Race Relations Act 1976. The
government is consulting about the age strand of the Employment Directive at the
moment.
10. In a previous consultative document concerning the implementation of all three EU
Directives, the government undertook to ‘use the same wording, where appropriate, for all
the main concepts: direct and indirect discrimination, harassment and victimisation’. This
will facilitate implementation at institutional level. Internal documents may need to be
reviewed with reference to these legally established definitions.
11. Direct discrimination is defined as it is currently for race and sex. That is, it will be
automatically unlawful to discriminate against someone on, for example, grounds of
sexual orientation or religion or belief unless it can be shown that there is a genuine
occupational requirement (GOR). However, the application of the GOR is likely to be
given strict interpretation.
12. Harassment was not explicitly defined in either the Race or Sex Discrimination Acts
originally, and both have been or will be amended accordingly. The definition focuses on
‘unwanted conduct’, which is consistent with the European Commission Code of Practice
on measures to combat sexual harassment. Harassment occurs when someone’s actions
or words, based on the relevant grounds, are unwelcome and violate another person’s
dignity or create an environment that is intimidating, hostile, degrading, humiliating or
offensive. The intention is that, when deciding whether it is reasonable to consider that
conduct amounts to a violation of dignity or creation of an offensive environment etc.,
tribunals should be required to take into account all relevant circumstances, in particular
the perception of the person alleging harassment. There may be implications here for
internal documentation at institutional level that may not currently make this point explicit.
13. The employer is responsible for the actions of its staff as well as staff being individually
responsible. If harassment occurs at work, the HEI might be liable and may be ordered to
pay compensation, unless it can show that it took reasonable steps to prevent
harassment. The individual who harasses may also be ordered to pay compensation.
14. The definition of victimisation in respect of sexual orientation or religion or belief is similar
to that in the Race and Sex Discrimination Acts. It relates to the law itself and makes it an
offence to discriminate against someone because of something they have done
connected to upholding the law. This could extend beyond the current employment in
respect of references for former employees, and students. For example, the cause of an
adverse reference or refusal to provide one might be examined to see whether it was due
to a complaint of discrimination. Claims under this provision are not time-limited, but the
farther removed the alleged act of discrimination is from the former relationship, in both
time and context, the less likely it is that a person will be able to establish the necessary
close connection back to the relationship. Again, policies and procedures will need to be
reviewed and here it will also be necessary to bear in mind the requirements of the Data
Protection Act with respect to the length of time information on staff and students is kept.
15. The burden of proof in race, disability, religious or sexual orientation discrimination cases
is and will be the same as for sex discrimination. If a prima facie case is made (where a
tribunal could consider that discrimination or harassment has taken place), it is for the HEI
to prove that it did not occur. The fact that the burden of proof rests with the HEI has
major implications for operational practice.
16. The regulations that have been passed by Parliament do not require the statistical
monitoring of individuals for sexual orientation or religion or belief. However, it is good
practice to monitor the effect of policies and practices since this might assist in the
defence of any action against an institution.
Strand-specific Provisions
Religion or Belief
17. Religion or belief is defined as being any religion, religious belief or similar philosophical
belief. The belief must be similar to a religious belief and case law will be the ultimate
determiner of what is covered by the regulations.
18. The provisions for religion and belief extend to discrimination against contract workers
and qualifications bodies. In auditing their practices and procedures to ensure that they
accord with the new legislation, HEIs will wish to include such matters as the provision of
a wide range of staff and students’ religious and cultural needs, such as dietary
requirements and prayer room facilities, and flexibility with respect to cultural or religious
holidays. Aspects of the interpretation of the regulations will be settled by case law; one of
the more obvious test cases might be time-off in respect of religious festivals.
Sexual Orientation
19. Sexual orientation is defined as
? Orientation towards persons of the same sex
? Orientation towards persons of the opposite sex
? Orientation towards persons of the same or opposite sex
The regulations do not extend to sexual preferences and practices such as paedophilia.
20. Perception of sexual orientation harassment also covers discrimination against someone
who ‘looks’ or ‘acts’ gay, even if they are not. The terms and conditions of the
employment contract will probably have to be assessed to ensure that staff in a same sex
relationship are entitled to the same benefits as those who are married or have partners
of the opposite sex. This would include issues such as compassionate leave.
Disability
21. From its inception the Disability Discrimination Act 1995 was different from the Sex and
Race Discrimination Acts. Its amendments will, among other things, provide protection
against ‘blanket bans’ on the employment of persons with a particular disability.
22. The definition of disability discrimination will remain the same, but there will be the
provision that less favourable treatment cannot be justified if it occurs merely because an
individual has a disability. It has always been unlikely that such treatment would be not
justifiable and this will be made explicit.
23. It will no longer be possible to justify failure to make a reasonable adjustment. The duty to
make adjustments has been extended to training and mentoring. Adjustments will also
have to be made in respect of occupational pension schemes, which were previously
excluded under the Act. Trustees or managers of occupational schemes will have to fulfil
particular duties, whereas employers’ responsibilities will not be as prescriptive. However,
they will have to ensure that aspects of the schemes do not substantially disadvantage
disabled employees. This would include access to information about a scheme where, for
example, provision may have to be made for someone to read information about it to a
visually impaired person.
24. The DDA made it illegal to discriminate against a disabled person by dismissing him or
her simply on the grounds of disability. The new regulations will make it explicit that
constructive dismissal and the termination of employment by the expiry of a period of time
(unless employment is immediately renewed on the same terms) come within the
definition of dismissal.
Age
25. The government intends to outlaw age discrimination in general (with one or two
exceptions) with similar definitions and sanctions to those that already exist in the other
equalities strands. However, there may be scope to justify an age-based policy with
reference to specific aims and the particular circumstances that make the practice
appropriate and necessary. Justifications might include the facilitation of employment
planning, for example, where a business has a number of people approaching retirement
at the same time, and encouraging and rewarding loyalty.
26. The government is also consulting on specific practices. They are retirement age, pay
and non-pay benefits based on ‘seniority’, and age limits for recruitment, selection and
promotion.
While these will affect every employer, they are likely to have far-reaching implications for
HEIs due to the age profile of their existing staff, and their pay and promotion structures,
notwithstanding the justification of specific aims (see paragraph 25). As well as having the
potential to have a significant financial impact on HEIs, there are major implications here
for HE employment practices.
27. At present, the government’s view on retirement age is that compulsory retirement ages
would be unlawful but that, exceptionally, employers would be able to justify mandatory
retirement ages in certain circumstances. There is more uncertainty about introducing a
default compulsory retirement age, although 70 is the age under consideration. Current
thinking on pay and non-pay benefits is that the legislation should allow employers to
provide them based on length of service or experience, even though this might otherwise
amount to unlawful direct or indirect discrimination, if they can justify doing so. This
effectively means that rewarding and encouraging loyalty can be a legitimate aim. The
probability of an upper limit to recruitment is currently under consultation, but only if it can
be justified. It might be permissible if, for example, it is based on the training requirements
of the post or the need for a reasonable period of employment before retirement.
Action
28. Sector practitioners will wish to note these developments and consider the implications for
their own HEIs. Attention is drawn particularly to the comments in paragraphs 2, 8, 10, 11,
12, 13, 14, 15, 16, 18, 20, 23, 24 and 26.
29. The ECU will be issuing further advice in these areas that will be circulated to heads of
institutions and sector practitioners. At present, there are links to the legislation on its
website, www.ecu.ac.uk, which is regularly updated to provide information and advice
about recent developments.
Legislative Timetable
Legislation
Comes into force
Employment Equality (Sexual Orientation) Regulations 2003
1 December 2003
Employment Equality (Religion or Belief) Regulations 2003
2 December 2003
Disability Discrimination Act 1995 (Amendment) Regulations
2003
1 October 2004
Amendments to the Sex Discrimination Act
5 October 2005
Age Discrimination Legislation
1 October 2006
Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001
The Fixed-term Contract Regulations make it very clear that expiry of a period of time (i.e. the expiry
of a fixed-term contract) is in any case a dismissal within the terms of the law.
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