Watching the directives

Two European Directives mean that by the end of this year it will be unlawful to discriminate not only on the grounds of sex, race and disability but also on the grounds of sexual orientation, religion or other belief.

By December 2006, this will be extended to discrimination on the grounds of age. This explosion of legislation increases the burden on employers in the workplace, and has a number of implications.

The directives and existing laws
Both directives require that direct discrimination on all of the new grounds be made unlawful. The first new directive, the Race Directive, requires member states to put in place measures protecting individuals against discrimination on the grounds of race or ethnic origin. The directive's impact will be greater in other parts of the European Union than in the UK as it mirrors, in many respects, the structure of UK law already enshrined in the 1976 Race Relations Act. However, there will be some changes to existing law.

The second directive, the Framework Directive, sets a general framework for equal treatment in employment and will protect people against discrimination on the grounds of their sexual orientation, religion or belief, age and/or disability. The UK already has existing legislation in the form of the 1995 Disability Discrimination Act, but this needs some fundamental changes and new laws will be required to implement the aspects of the Framework Directive for which no specific UK protection currently exists.

The government proposes to use the definition contained in the Race Relations Act for the new grounds, with the exception of disability. This is to ensure that the defence of justification in some circumstances under the Disability Discrimination Act is preserved.

Indirect discrimination has likewise been recognised under UK law where members of a minority group are disadvantaged due to a "requirement or condition" applied to them. The new directives broaden this definition to a "provision, criterion or practice", so the Race Relations Act will need to be amended. More significantly, the concept of indirect discrimination does not presently exist in the Disability Discrimination Act, which will also have to change.

The current proposal will create uncertainty in relation to fringe religions such as Wicca

The directives also impose specific provision for each of the categories covered by the legislation, mainly dealing with definitions of the groups of individuals covered, circumstances in which differences in treatment can be justified and exceptions to discrimination.

Timetables for the changes
These changes, whatever their final form, will take place over the next 18 months. The Race Directive is to be implemented by 19 July, and the regulations on sexual orientation and religion or belief will be implemented in December. The government intends to amend the Disability Discrimination Act by 1 October 2004.

Some practical problems lie ahead for employers. For example, the new regulations will, for the first time, officially recognise that harassment is a form of discrimination. Harassment is defined as unwanted conduct intended to, or which creates the effect of, violating a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It is not clear, though, to what extent the perpetrator needs to understand that their acts have the prohibited effect and to what extent the victim's view may be challenged.

Fringe religions
The current proposal is to offer no statutory definition for religion and belief, creating uncertainty in relation to fringe religions such as Wicca. If the decisions of the European Court on Human Rights are a guide, a wide definition could be given including such beliefs as veganism and Scientology. Similarly, the circumstances in which age discrimination is justified are unclear.

The legislation will also have knock-on effects. With increasing numbers of employees using discrimination legislation to put more pressure on employers in unfair dismissal claims, often where the discrimination case is ill-founded, employers will no doubt face increased litigation.