Discrimination: widening the net

Recently the House of Lords decided that an officer expelled from the armed forces on the grounds of homosexuality, and homophobic abuse directed at a teacher by pupils, did not amount to discrimination under UK legislation. All that has changed with the Employment Equality (Sexual Orientation) Regulations 2003, and the Employment Equality (Religion or Belief) Regulations 2003, which came into force on 1 and 2 December 2003 respectively.

Together these Regulations, for the first time, prohibit direct and indirect discrimination based on an individual’s sexual orientation or their religion or belief.  

Religion or belief is defined as “any religion, religious belief or similar philosophical belief”. This covers both established religious beliefs such as Judaism, Catholicism and Islam, and non-belief. In deciding whether a particular faith or tradition comes within the definition, tribunals are likely to take into account factors such as whether there is a clear belief system, perhaps governed by a document such as the Bible or the Koran, whether it involves collective worship and whether it amounts to a profound belief affecting a person’s way of life or view of the world.

The definition of “sexual orientation” will protect gay men and lesbians, as well as heterosexuals and bisexuals of both sexes, from discrimination on the basis of their sexual orientation. It will not, however, extend to sexual preferences and practices, e.g. sado-masochism or paedophilia.

Interestingly, both pieces of legislation outlaw discrimination on the basis of actual or perceived sexual orientation or religion or belief. So, if a person is believed by their employer to be a homosexual and discriminated against on this basis, when in fact they are not, this will not prevent a claim of discrimination. Similarly, if an employer refuses employment because he thinks the applicant is Muslim, when in fact they are not, they will still be able to claim under the Regulations.

Employees will also be protected from discrimination because of the sexual orientation, religion or belief of someone with whom they associate. For example, if an employee is dismissed because it is known that she carries out voluntary work for a well known lesbian charity, this will still amount to discrimination. Her own sexual orientation is irrelevant in these circumstances.

It is anticipated that these new Regulations will have a great impact on the employment relationship and that it will not be long before the first case relying on them comes before the employment tribunal. Indeed, even before the Regulations were introduced, these issues have arisen: in October 2003, the decision in Zia v Killermont Polo Club (Scotland) Ltd was issued by the employment tribunal in Glasgow.

That case encompassed several heads of claim including unfair dismissal, breach of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, unlawful deduction from wages and race discrimination. The applicant was a Pakistani Muslim. Two of the respondent’s directors were of Indian origin, one being Sikh and the other of Hindu religion. Another employee of the respondent in a managerial capacity was also of Indian ethnic origin and Sikh religion.

The applicant claimed that during the course of his employment, the respondent had treated him less favourably because of his race, country of origin, religion/culture and ethnic origin as a Pakistani Muslim compared to others who were Indian Sikhs.

In their decision the tribunal, commenting on a submission for the applicant that “this was not a ‘white versus black’ situation, but discrimination by another person of seemingly the same colour”, stated that this “astute observation has reminded us very poignantly, that in a west of Scotland context, the applicant’s case within the Asian community is very similar to what, in the local white community, might be a very similar situation as regards religious intolerance, or bigotry, or sectarianism, as between the Catholic and Protestant elements of the Christian tradition”.  

Although the tribunal could not consider any grounds for discrimination which came within the confines of the Religion or Belief Regulations, they were satisfied that the applicant was subjected to less favourable treatment on account of his Pakistani ethnic origin, and awarded the sum of £22,000 as compensation for injury to feelings. Had the Regulations been in force, it is likely that the tribunal would have found that the applicant was discriminated against on the grounds of his religion.

It is apparent therefore that discrimination on the grounds of religion or belief may occur within groups of people who, as the applicant’s representative described “are seemingly of the same colour”, and this is one of the areas in which a much more thorough understanding of our multicultural and diverse society will become essential if we are not to fall foul of the Regulations and the positive effect they are intended to have.

ACAS have helpfully issued two new guides relative to both sets of Regulations. These provide invaluable good practice advice and summarise the Regulations in a clear and understandable manner.

Melanie Kerr, Employment Practice Group Leader, Harper Macleod