By Rachel Dineley
Head of the London Employment Department, Beachcroft Wansbroughs
What are the new laws protecting workers from sexual and religious discrimination at work? A leading employment lawyer explains what they will mean for workers and employers.
Major changes to employment law have been introduced.
On 1 December 2003, employers became liable for tackling discrimination against employees, agency and other workers on grounds of sexual orientation (whether heterosexual, gay or lesbian or bisexual).
On 2 December it became unlawful to discriminate on the grounds of religion, religious belief or similar philosophical belief.
These changes followed earlier developments which widened the scope of sex and race discrimination law by making it unlawful for employers to discriminate against individuals even after they have left their job, for example in providing references to future employers.
All these changes may present unexpected challenges for employers.
How to define religion
Whilst they may be able to readily identify mainstream religions, in practice they will need to gain an understanding of a wide variety of religious beliefs and practices with which they may be unfamiliar, in order to ensure that they do not inadvertently discriminate against staff.
And while political beliefs are not included in the definition of discrimination, it is far from clear where the line is to be drawn.
Can atheism be regarded as a "similar philosophical belief"?
Are pacifists and animal rights activists protected?
Consistent with the generally broad approach taken by employment tribunals in the interpretation of discrimination legislation, we should expect these new regulations to be given wide application by the courts.
Direct discrimination will arise where workers or job applicants are treated less favourably than others in comparable circumstances, on grounds of sexual orientation or religion or belief.
Examples include the refusal to offer a job or to provide training or withhold promotion, as well as dismissal.
Such discriminatory treatment is unlawful whether it is intentional or not.
Indirect discrimination can arise if the employer operates working practices or policies or rules which have the effect of disadvantaging people of a particular sexual orientation or religion or belief, unless they can justify them.
An exception is made in respect of jobs where to be of a particular religion or belief constitutes a genuine occupational requirement (for example, in church-run schools where teaching staff may be required to promote a particular religious ethos in their teaching and supervision of pupils).
Employers who have yet to consider the implications of this new legislation should do so without delay.
It will not be enough for employers to pay lip service to these new regulations
They will need to review a range of policies and internal processes (ranging from recruitment through to the provision of remuneration and benefits packages and the conduct of disciplinary and grievance procedures).
Just as important will be to look at the often unwritten rules and arrangements which govern the day to day conduct and management of staff within the workplace.
For example, do catering and social arrangements create any disadvantage for those with special dietary requirements or who do not consume alcohol on religious grounds?
Do holiday arrangements adequately cater for those wishing to take annual leave to coincide with religious festivals and how are these to be dealt with when they clash with business needs?
It will not be enough for employers to pay lip service to these new regulations, by adding references to religion, belief and sexual orientation, in their equal opportunities policies.
Employers should give active consideration to the impact their workplace practices may have on their staff and encourage openness so that concerns may be raised and addressed.
Where those practices are indirectly discriminatory, new ways should be sought to meet any legitimate business needs which underlie them, which reduce or eliminate the discriminatory effects on staff.
Workers will have to think twice before telling insensitive jokes
Of course, the onus will not lie on employers alone.
To secure compliance, employers will need to provide information and training, particularly at managerial levels, to ensure that legal requirements are met in practice.
The spirit of the legislation is to encourage tolerance and consideration amongst work colleagues.
This is best illustrated by the new regulations which outlaw harassment on grounds of sexual orientation, religion or belief.
Any unwanted behaviour which has the purpose or effect of violating an individual's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive working environment may give rise to an allegation of harassment.
Workers will have to think twice before telling insensitive jokes or expressing intolerant views which may give offence.
The message of the legislation is simple: have respect for your colleagues.
The opinions expressed are those of the author and are not held by the BBC unless specifically stated. The material is for general information only and does not constitute investment, tax, legal or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.