Main Changes to Discrimination Legislation
October 1st 2004

October 1st 2004 saw a large number of changes in employment legislation and in particular in the legislation dealing with discrimination in the workplace.

The changes are very far reaching and introduce new heads of claim for discrimination on grounds of religion or belief and discrimination on grounds of sexual orientation as well as making significant changes to the existing Disability Discrimination Act 1995.

Some of the most important changes to the law on discrimination are:

• The introduction of harassment as a separate head of claim
  o Harassment is conduct that is ‘unwanted by the recipient’
  o It must be on grounds which are covered by the discrimination legislation
  o In order to succeed, a complainant does not have to identify a comparator of a different race, religion etc who has not been harassed
  o Conduct does not need to be intentionally harassive but if the intention to harass was there then there is no need for the complainant to show that he was reasonable in treating that conduct as harassment
  o Employer may be liable for harassment that is persisted in by his employees after the employee has already indicated that the conduct is unwanted
  The shift in the burden of proof
  o The Regulations provide that where a complaint of unlawful discrimination or harassment has been issued before a tribunal, so long as the person bringing the claim has made out a prima facie case for discrimination (i.e. so long as the tribunal could, in the absence of an explanation from the employer, consider that discrimination or harassment has taken place) then the burden falls on the employer to prove that he did not commit the act of discrimination or harassment complained of.
  o This shift in the burden of proof has already been in existence for sex discrimination claims since 12 October 2001 and for race discrimination claims since 19 July 2003
• The removal of the ‘justification’ defence to claims of failing to make reasonable adjustments under the Disability Discrimination Act 1995. However, it is still the case that employers need only make reasonable adjustments and the main factors which should be taken into account when determining what is reasonable is set out in Section 6 of the Act.
  
• (With the exception of the DDA) a change to the wording for the defintion of indirect discrimination and a change to the statutory test for justification of indirect discrimination
  o ‘A person (“A”) discriminates against another person (“B”) if …A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same [religion or belief] as B, but –
  - which puts or would put persons of the same [religion or belief] as B at a particular disadvantage when compared with other persons,
  - which puts B at that disadvantage, and
  - which A cannot show to be a proportionate means of achieving a legitimate aim'
  o Therefore, whether an indirectly discriminatory practice will be lawful or unlawful will depend on whether the employer can show that it is a ‘proportionate means of achieving a legitimate aim’. A ‘legitimate aim’ is likely to be interpreted widely. For example a legitimate aim could be administrative efficiency, or profitability but employer must remember that it must be proportionate.

These are some of the most significant changes but as with all employment issues, it is advisable to seek professional legal advice before taking any action where the discrimination legislation could apply.

Further information
If you would like further information please contact Caroline Walker, head of the Employment Department at Sprecher Grier Halberstam LLP, Solicitors.This article is based on UK law, is for general guidance only and should not be relied upon without specific legal advice:

Caroline Walker 020 7264 4385 carolinew@sghlaw.com