On 1 December 2003 it will become unlawful under the Employment Equality (Sexual Orientation) Regulations 2003 for employers to discriminate on the grounds of an individual’s actual or perceived sexual orientation. On 2 December 2003 it will become unlawful under the Employment Equality (Religion or Belief) Regulations 2003 to discriminate on the grounds of an individual’s actual or perceived religion or belief. Protection against discrimination is extended not only to employees but also to any self-employed person who is contracted to provide services personally, agency workers and people undertaking vocational training.
The regulations apply to both direct and indirect discrimination. Direct discrimination is where an individual is treated less favourably because of their actual or perceived sexual orientation, religion or belief. Indirect discrimination is where a “provision, criterion or practice” is applied which disadvantages a person of a particular sexual orientation, religion or belief. Indirect discrimination may not, however, be unlawful if the employer can establish that there is a legitimate aim (ie a real business need) and that the provision, practice or criterion is proportionate to that aim.
The regulations apply not only to the treatment of workers during the period of employment but also to the recruitment process and the termination of employment. It will also be unlawful to harass individuals on the grounds set out in the regulations or to victimise them because they make or intend to make a complaint or give evidence in relation to a complaint of discrimination.
Sexual orientation is defined in the regulations as being “a sexual orientation towards persons of the same sex, persons of the opposite sex or persons of the same sex and of the opposite sex.” Individuals are therefore protected whatever the nature of their sexual orientation. The law does not, however, protect against discrimination based on particular sexual practices.
Religion or belief is defined in the regulations as “any religion, religious belief or similar philosophical belief.” Whilst this will clearly cover all major religions there is some element of doubt as to the extent to which, for example, non theistic creeds and “lifestyle” movements will be covered. That will be a matter for interpretation by tribunals and the courts.
ACAS has published helpful guidelines on the implications of the regulations and these can be viewed on their website – www.acas.org.uk