Introduction
The UK government has recently introduced statutory
regulations that alter aspects of equality law
in the UK. They implement two EU directives (one
on race, one on employment) and also make
amendments to the Sex Discrimination Act and the
Equal Pay Act.
Because of the way that current UK legislation is organised
different regulations have to be introduced for
the six different categories under which people
may suffer discrimination i.e. age, disability,
gender, race, religion or belief, sexual
orientation. The different sets of regulations
come into force on different dates.
Equality law is reserved to Westminster and the regulations
were put before the UK Parliament for approval.
The Scottish Parliament has no power to revoke
or amend them. Local, national and UK government
fall under the provisions of the regulations and so does the voluntary sector.
This briefing highlights aspects of the regulations of
particular relevance to the voluntary sector. The briefing is not an
authoritative statement of the law nor does it
cover every aspect of the regulations. If you in
any doubt as to how these regulations will
affect your organisation, you should seek
independent legal advice.
Key questions
The biggest impact is going to be on the sector as an
employer. It will also be affected, with respect
to the race regulations, as a provider of
education or training and goods, services and
facilities. If a voluntary organisation is
defined as a ‘public authority’ (which legal
cases have suggested it can be in certain
circumstances) it will be covered. In general,
voluntary organisations should know how the law
could protect and/or also potentially be used
against members of their client groups.
Do
the employment provisions protect volunteers or
trustees of a charity?
In its report ‘From Exclusion to Inclusion’, 1999) the
Disability Rights Task Force, which was set up
in 1999 to review the DDA, made reference to
trustees being included in a good practice
approach that brought volunteers under the scope
of disability legislation.
It
appears that some protection to volunteers and
trustees may be afforded with respect to
disability. It may also extend to volunteers
with respect to other areas of discrimination.
However,
in the recent regulations with respect to race
and employment volunteers are not specifically
referred to. Furthermore, the situation as
regards a) trustees of a charity; b) members of a management
committee of a voluntary organisation or c)
members of a board of directors of a charitable
company is, legally speaking, very unclear.
In
the regulations concerning race, religion/belief and sexual orientation then
only category that could be said to include any
of the above three groups (a, b & c) is that
of an ‘office holder’. This is defined as a
person who occupies an “office or post to
which persons are appointed to discharge
functions personally under the direction of
another person” and “in respect of which
they are entitled to remuneration” and that an
“appointment to an office or post does not
include election to an office or post.”
At first glance these
definitions may appear to exclude the three
categories of people a, b & c. However, if
any thought is given to the many and varied ways
in which those people occupy their positions and
the roles they adopt in practice, it become
clear that they cannot be universally excluded
by the definition of ‘office holder’
provided in the regulations. Furthermore, other
legal sources provide alternative definitions of
an ‘office holder’ and it is unclear which
definition might be acceptable to a court or
tribunal when making a decision in any given
case.
It
seems likely that it will take a decision in a
particular case to shed any light on this area.
If a situation arose where a person from the
groups above (a b & c) was unsure of their
position they should seek independent legal
advice from a specialist in employment law.
Are
trustees and volunteers included as part of an
organisation for the purposes of making a
complaint against that organisation?
Yes. For example, volunteers often deliver the services of
an organisation and trustees are often
employers.
Did
I hear something about the removal of the
exemption for charities to discriminate in
employment? Does that mean they could up until
now?
You did and they could. In the original 1976 Race Relations
Act charitable instruments could ‘provide for
conferring benefits on persons of a class
defined by reference to colour’. This was
clearly intended to allow a charity to focus its
efforts on a particular group without being
accused of discrimination but it also included
employment. Employment is not included any more
unless it can be demonstrated that such
discrimination is necessary as part of a genuine
occupational requirement.
Do
these regulations bring parity of protection
under UK law to the different groups that suffer
discrimination?
No. Certain groups now have more protection than previously but there is no parity. For
example, those discriminated against on grounds
of race have more comprehensive protection than
others.
Whether different groups should have completely equal
protection under the law is a complex and
ongoing argument. However, many people and
groups, including SCVO, advocate a Single
Equalities Act to cover the various groups
identified as in need of protection. The
government has announced (November 2003)
the creation of a single Commission for
Equalities and Human Rights by 2006. It will
replace the Commission for Racial Equality, the
Disability Rights Commission and the Equal
Opportunities Commission. It will take
responsibility for upholding the various rights
in the ‘established’ areas of race,
disability and gender and take on the ‘new’
areas of age, sexual orientation and
religion/belief as well as any future measures
that are introduced
The
Details
Council
Directive 2000/43/EC known as the ‘The Race
Directive’.
Its purpose was to “lay down a framework for
combating discrimination on the grounds of
racial or ethnic origin, with a view to putting
into effect in the Member States the principle
of equal treatment.”
This directive prohibits discrimination based on race in
several areas: employment & occupation,
education, social protection (including social
security & healthcare), social advantages,
access to and supply of goods and services,
(including housing).
This directive prohibits discrimination based on the
categories noted but only
in the area of employment and occupation.
1)
Race Relations Act 1976 (Amendment) Regulations
2003.
SI#1626. Came into force on 19 July 2003.
Includes:
- new
definition of indirect discrimination &
harassment;
- exemption
from the provisions of the Act if a genuine
occupational requirement requires
discrimination based on race;
- governmental
and other appointments, contract workers,
business partnerships, trade organisations,
qualifying bodies, providers of vocational
training, employment agencies, the Training
Commission, bodies concerned with education
or vocational training or guidance, public
bodies concerned with health, welfare, or
other services, providers of goods,
facilities, services or accommodation are
all now covered in whole or part;
- provision
to bring action over a relationship after
that relationship has ended;
- office
holders covered individually and with
respect to inducing someone to discriminate;
- removes
the exemption for charities to discriminate
in employment (unless its with respect to an
occupational requirement);
- charges
the Commission for Racial Equality (CRE) to
work towards elimination of harassment as
well as discrimination; allows that
harassment can feature in a code of
practice; gives powers for a formal CRE
investigation to take place over harassment
claims and that harassment can be a cause
for issuing a non-discrimination notice for
persistent unlawful behaviour; covers claims
heard by employment tribunal and related
issues
2b)
The Employment Equality (Religion or Belief)
Regulations 2003.
SI#1660.
Come into force on 2 December 2003 and
cover “religion,
religious belief or similar philosophical
belief”.
Both concern unlawful discrimination in the areas of
employment and vocational training. Common to
them both are:
- issues
of direct & indirect discrimination,
harassment and victimisation (including
definitions of these terms).
- coverage
in whole or in part of employees, contract
workers, office holders, partners in firms,
trade organisations, professional and trade
qualification giving bodies, training
providers, employment agencies, further and
higher education institutions, Crown
servants, parliamentary staff.
- provision
to bring action over a relationship after
that relationship has ended.
There are exceptions to what is unlawful.
Exemptions for ‘religion and belief’ include: actions
taken for reasons of national security or
positive action, for Sikhs with respect to
safety helmets, if a genuine occupational
requirement requires discrimination based on
religion or belief.
Exemptions for ‘sexual orientation’ include: actions
taken for reasons of national security or
positive action, with respect to benefits
related to marriage, if a genuine occupational
requirement requires discrimination based on
sexual orientation, employment by a religion
where certain sexual orientation conflicts with
that religion’s doctrine.
3)
The Disability Discrimination Act 1995
(Amendment) Regulations 2003.
SI#1673. Come into force on 1 October 2004. They
implement the directives but also cover further
changes already agreed to by the government.
They include new or amended provisions in the following
areas:
- definitions
of harassment and discrimination (NB in
effect this legislation does not include prohibition
of indirect discrimination unlike other legislation);
- scraps
the exemption for small employers,
- prohibition
of discrimination or harassment &
requirement for reasonable adjustments to be
made for
contract workers, office holders, partners in firms,
certain legal professionals, trade
organisations, qualifications bodies, work
placement providers, employment services,
police, prison officers, fire fighters,
ministerial appointments;
- provision
to bring action over a relationship after
that relationship has ended
- covers
advertisements which show an intention to
discriminate
- prohibits
instruction and pressure to discriminate
- adds
to the enforcement powers of the Disability
Rights Commission (DRC)
- exempts
action taken to safeguard national security.
4a)
Sex Discrimination Act 1975 (Amendment)
Regulations 2003.
SI#1657. Came into force on 19 July 2003.
They include new or amended provisions in the following
areas: the situation of police officers, provision to bring action
over a relationship after that relationship has
ended, provisions for certain legal
professionals.
4b)
The Equal Pay Act 1970 (Amendment) Regulations
2003.
SI# 1656. Came into force 19 July 2003.
They include new or amended
provisions in the following area: Time limits with respect to
employment tribunals.
5)
Age Regulations
The government has recently consulted as to the exact
content of any regulations covering
discrimination based on age. Once it has decided
on their content the government plans to lay
them before Parliament in late 2004. They would
then come into force in December 2006.
Find the consultation by
clicking
here.
These regulations will be concerned with unlawful
discrimination in the areas of employment and
vocational training and, because they derive
from the same EC directives, they will have much
in common with the measures outlined in other
regulations. However, because of the nature of
the grounds upon which discrimination can be
claimed (i.e. age) the proposals address other
key areas:
- exceptionally,
discrimination based on age will be
justifiable for specific reasons, for
example, health and safety; facilitation of
employment planning, training requirements,
encouraging and rewarding loyalty, the need
for a reasonable period before retirement
- retirement
age
- recruitment,
selection and promotion
- pay
and non-pay benefits
- unfair
dismissal
- redundancy,
including statutory redundancy pay
Resources
European Community Law - punch in the numbers of the
directives in the search boxes to access
the full text www.europa.eu.int/eur-lex/en/search/search_lif.html
HMSO law section (Government publications) - go to
statutory instruments and find the full text
of the recommendations under 2003 using the
relevant SI number (SI#)
www.legislation.hmso.gov.uk
Commission for Racial Equality (CRE)
www.cre.gov.uk
Disability Rights Commission (DRC)
www.drc-gb.org
Equal Opportunities Commission (EOC)
www.eoc.org.uk
Age Concern
www.ageconcernscotland.org.uk
Help The Aged
www.helptheaged.org.uk
Scottish Interfaith Council
www.interfaithscotland.org
Equalities Network
www.equality-network.org
Stonewall
www.stonewall.org.uk
For
general employment advice contact:
Citizens Advice Bureaux. Details of local offices are in the phone book or at Citizens Advice Scotland
www.cas.org.uk
Your local Council for Voluntary Service (CVS)
www.cvsscotland.org.uk
Scottish Low Pay Unit
www.slpu.org.uk
0141 552 5922
Your own union or the Scottish Trades Union Congress
www.stuc.org.uk
SCVO Information Department
enquiries@scvo.org.uk
To obtain this document in alternative formats
please contact Andrew Jackson Tel 0131 474 6183
email
andrew.jackson@scvo.org.uk
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