On 2 December 2003, for the first time ever in the United Kingdom, there will be specific statutory protection against sexuality and religious discrimination in employment. The celebrations will be marred by the shortcomings in the new legislation, which trade unions are rightly challenging in the courts, but this does not detract from some of the very real improvements contained in the legislation.
So far already this year we have had a strengthening of the Race Relations Act with the introduction of the Race Relations Act (Amendment) Regulations 2003 on 19 July, which gave statutory form to protection from harassment, post employment protection and improved the burden of proof, as well as widening the definition of indirect discrimination. On the same day the Sex Discrimination Act (Amendment) Regulations 2003 were implemented, bringing the police within the legislation and prohibiting post-employment discrimination.
The Equal Pay Act (Amendment) Regulations were also effective from 19 July this year to bring the law in line with European court judgments on time limits and arrears of pay. No longer will employers be able to benefit from concealing pay inequality, or avoiding liability where there is a stable employment relationship - even if the contractual position is a little murky.
The new rights and new forms of protection against sexuality and religious discrimination come into force in December this year. Similar in structure to existing equality legislation direct and indirect discrimination will be unlawful as will victimisation and harassment. A religion or belief is defined as "any religion, religious belief, or similar philosophical belief" which leaves scope for argument that less obviously religious beliefs will be included, such as humanism and atheism. Sexual orientation is defined as orientation towards members of the same sex, the opposite sex or both - which should cater for most tastes. Manifestation of religion or sexual orientation will be covered, as will discrimination by association.
There is however a gaping hole in the sexual orientation regulations which TUC affiliates are challenging through the courts as an improper implementation of the Framework Directive. Anything which prevents or restricts access to benefits by reference to marital status is exempt from the regulations. Since same-sex partners cannot marry, the exemption constitutes a licence to discriminate in this area. Also of great concern is the last minute introduction of a clause enabling employment for purposes of an organised religion to apply a sexual orientation requirement, which is also being challenged as outside the scope of the Directive.
Still to come are the amendments to the Disability Discrimination Act 1995, which will be in force in October 2004. These will bring the DDA more into line with other anti-discrimination legislation and remove the reviled small employer exemption and most of the other exemptions. It will also introduce the now familiar provisions of a statutory definition of harassment, provide a shifting burden of proof and prohibit direct discrimination (with no justification defence). The final aspect to be introduced in compliance with the Equality Framework Directive will be the age discrimination provisions in 2006, discussed in detail last month.
The task ahead will be to use the new regulations, flawed though they are, as an important tool in the trade union armoury in achieving genuine freedom from discrimination in the workplace.