Equality rights summary

Date: 01 December 2003

Important new anti-discrimination rights were introduced on December 1 by the UK Government. This will give workers new rights to protection against discrimination on the grounds of sexual orientation, religion or belief.

Sexual orientation

There is currently no specific legislation providing protection on the grounds of sexual orientation. From 1 December 2003 there will be a new law making it unlawful for an employer to discriminate because of a worker's sexuality.

The Employment Equality (Sexual Orientation) Regulations will outlaw direct and indirect discrimination. The regulations will apply to all aspects of employment including recruitment, promotion, transfers, training and dismissal.

Discrimination based on perceived sexual orientation is covered so someone will be able to bring a claim even if the discrimination was based on incorrect assumptions about their sexual orientation.

Below are some examples of the kinds of employment practices which will be unlawful under the regulations:

• Refusing to employ or dismissing someone because they are lesbian, gay or bisexual

• Reusing access to training or promotion because of sexual orientation

• Failing to act to protect lesbian, gay or bisexual workers from bullying and harassment.

• Denying lesbian, gay or bisexual workers the benefits they offer to heterosexual employees. This should mean that any benefits offered to an employee's partner must also be offered to same sex partners. However benefits restricted to married partners and which therefore exclude lesbian, gay or bisexual partners (such as an occupational pension survivors benefit) will still be lawful.

Religious belief

From 1 December 2003 there will be new protection against direct and indirect discrimination on the grounds of religion or belief. The regulations do not give a definition of either religion or belief and so there is some uncertainty as to which groups will be covered by this new right.

For our purposes the main impact of this new right is likely to be around religious observance at work. So, for instance an observant Muslim employee who goes to the mosque on a Friday and whose employer would not accommodate this could claim that the employer was discriminating against him on the grounds of his religion.

Some examples of the kinds of adjustments employers might need to make in the light of these regulations are as follows:

• Ensuring that workplace canteen facilities provide for different dietary requirements.

• Providing on site prayer facilities.

• Accommodating cultural or religious holidays.

• Accommodating a refusal by an employee to work in the alcohol section. of a store on religious grounds.

Age discrimination

It is likely that age discrimination legislation will have a significant impact in our sectors. Some of the Government's proposals are controversial. The main proposals are as follows.

Discrimination

Age discrimination in employment and vocational training will be made unlawful. The law will give new rights to workers and to people who apply for work. Direct and indirect discrimination will be outlawed.

Retirement Ages

This is one of the biggest issues covered in this consultation and one with major implications for us. Retirement ages set by employers will be unlawful under the directive unless they can be objectively justified. This means that workers will be able to make their own decision about when to retire, as opposed to being forced to leave their jobs just because they reach company retirement age.

The Government is considering three options here:

• To make compulsory retirement ages unlawful. This would enable workers to negotiate their own retirement age with their employer. In principle a flexible retirement age is a good idea. However the evidence from other European countries is that where people choose to carry on beyond normal retirement age, it is overwhelmingly because they can't afford to retire any earlier.

• To allow employers in certain limited circumstances to set a retirement age. This would allow employers to decide when to retire their employees, just as at present. The only difference would be that employers would have to justify their choice of retirement age by showing that it was necessary to protect the health and safety of staff.

• To set a default retirement age of 70 at which age workers would retire, assuming they had not already done so. We are concerned that this option could encourage employers to raise the age at which workers can claim their pensions and could ultimately signal a raising of the basic state pension age to 70. The Government has separately announced that the tax rules will be changed to allow workers to draw their occupational pension whilst still working for the same employer.

Unfair dismissal and redundancy rights

A major area of concern is that the consultation document proposes to reduce compensation in cases of unfair dismissal and to reduce statutory redundancy pay. At present someone who wins an unfair dismissal claim has the right to a basic award, calculated on the number of years they have worked for the employer. For those over 41 it is one and a half weeks pay for every year over that age. The Government wants to reduce this to a weeks pay for each year, thereby making the payment the same regardless of age. A worker aged 59 with 20 year's service would lose about a third of their basic ward or statutory redundancy pay if this goes ahead.

However the rule permitting only 20 years of service to be taken into account in the calculation is to be retained, effectively undervaluing the service of older workers. The Government argues that the 20 year threshold places younger workers at greater risk of dismissal because it increases the cost to employers of dismissing older staff where the dismissal has been found to be unfair. The Government's argument is that employers are more likely to dismiss younger workers as the costs of getting it wrong are less.

Length of service criteria

Where benefits are determined by length of service, this could amount to indirect discrimination under the regulations on the grounds that it is harder for younger workers to meet the qualifying criteria for them. Annual leave is an example of this. The regulations are unlikely to outlaw length of service criteria, but negotiators are likely to be involved in reviewing such benefits once the regulations arrive.

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© 2003 (USDAW) Union of Shop, Distributive and Allied Workers
This page: http://www.usdaw.org.uk/equality/resource_library/1071071389_13835.html
Last Modified: Monday, 08-Nov-2004 02:49:56 EST