On 17 October the UK Government reached political agreement on amendments to the draft EU directive on equal treatment in employment. The purpose of these amendments is to expand the current discrimination legislation to include a prohibition on discrimination on the grounds of religion or belief, disability, age and sexual orientation. The directive is likely to be adopted in the UK before the end of the year and implementation will be staged over six years – the age and sexual orientation provisions to be implemented within three years.
The consequence of this directive when it becomes implemented into English law is that wholesale protection will be afforded to employees in relation to their religion and beliefs, their sexual orientation and their age. Employers will not be able to discriminate against a worker on these grounds and will have to introduce measures to ensure that such discrimination does not take place within the workplace.
In reality, this directive will be putting into place a legislative framework for a legal position that is likely to have already become established through cases that would be brought under the recently implemented Human Rights Act. Already, last month we saw the Scottish Employment Appeal Tribunal (Seat) consider the implications of the act in MacDonald v Ministry of Defence. Although the act was not in place at the time of the decision, the Seat did consider the case as though its provisions had been in force.
The case involved the discharge from the RAF of a gay serviceman who had been subjected to abusive questioning by an interviewer on the basis of his sexuality. He claimed sexual harassment and that his dismissal was discrimination contrary to the Sexual Discrimination Act (SDA). The court considered that his treatment may well be contrary to the right to privacy under the Human Rights Act. The decision was ultimately based on the finding that the definition of the word "sex" in the SDA was ambiguous and should be interpreted to include "on grounds of sexual orientation". Although the reasoning in this decision is likely to be challenged, there is no doubt that the courts are moving towards a wider interpretation of equal treatment and are likely to interpret existing legislation so far as possible to be consistent with the act.
Employers should, regardless of the timing of the implementation of the directive, be putting into place provisions to prevent discrimination against employees on the grounds of their religion, sexual orientation or age. The courts have shown a willingness to interpret Article 8 of the act (the right to privacy) as a means of protecting discrimination on the grounds of sexual orientation and there is no reason why this proactive and purposive reasoning will not be extended to other forms of discrimination.
Employers should ensure that the safeguards they have in place in relation to sex, race and disability discrimination are now extended to cover discrimination on the grounds of age, religion and sexual orientation. Employers should be particularly mindful of this in relation to their recruitment policies and disciplinary procedures. Furthermore, adjustments should be made taking the new provisions into account – for example, allowing time off during religious festivals. However, employers should take care before introducing a wholesale anti-discrimination policy. Other aspects of the business, such as pension rights and share schemes, should be reviewed, as these may well be discriminatory in themselves.
The eventual implementation of the new EU directive, together with the rights afforded under the act, means that employers must be meticulous about their policies and procedures. There can be no doubt that employees will soon enjoy an unparalleled level of protection, and the days where employers could rely on restrictive interpretations of legislation look to be numbered.
Lisa Barron is a solicitor in Linklaters & Alliance's litigation department.