By the end of this year, employers will face new provisions aimed at outlawing discrimination on the particularly sensitive grounds of religious belief and sexual orientation.

Over the past two years the UK and other states within the European Union have established a common framework to tackle unfair discrimination. The UK government took a key role in negotiating the framework and is therefore heavily committed to its implementation in the UK. The key changes are in the new areas of sexual orientation and religion taking effect in 2003 and in 2006, age.

As part of its implementation strategy the government issued a consultation document and two sets of draft regulations dealing with sexual orientation and religion or belief. Although the regulations are still only in draft form, they give employers clear guidance as to how the new legislation will work in practice.

SEXUAL ORIENTATION

The draft Employment Equality (Sexual Orientation) Regulations 2003 outlaw both direct discrimination and indirect discrimination against a person on the grounds of their sexual orientation. This includes discrimination based on a person's perception of another's sexual orientation even if this perception is incorrect. A person will therefore be able to bring a claim even if the discrimination is based on incorrect assumption about sexual orientation. There is no onus on the person bringing the claim to disclose their sexual orientation when bringing a claim. It will also be a breach of the regulations to discriminate against a person by reason of their association with gay friends or because they refuse to carry out an instruction to discriminate against a gay person.

The protection against discrimination will even extend beyond the end of employment. For example, it will be unlawful for an employer to refuse to provide a reference to a former employee because of their sexual orientation.

The government is keen to stress that employers will retain some flexibility over certain decisions provided that such apparently discriminatory decisions can be justified. In practice however, the exemptions available are likely to prove very limited. Employers will be permitted to discriminate where there is a genuine occupational requirement and it is proportionate to apply that requirement in a particular case. It is proposed that these exceptions include a situation where the discrimination is a by-product of the need to safeguard national security and where the provision of benefits is dependent on marital status.

RELIGION OR BELIEF

Even more complex issues are arguably raised by the draft Employment Equality (Religion or Belief) Regulations 2003. Currently outside Northern Ireland there is no specific protection afforded to individuals on the basis of their religion (as opposed to their racial origin). This has lead to a strong perception that a number of employees lack protection unfairly. A group perceived to be especially disadvantaged is the UK's 2 million strong Muslim community. The government hopes that these new regulations will provide this additional protection. Unfortunately issues of religion and belief are rarely that simple.

The regulations define “religion or belief” as any religion, religious belief or similar philosophical belief. It will be noted that this definition does not include any philosophical or political belief unless that belief is similar to a religious belief. Employment tribunals will have to consider various factors when deciding what constitutes a religion or belief including the existence or otherwise of collective worship, belief systems and whether the employee holds a profound belief affecting a way of life or view of the world. The regulations do not propose that any guidance will be available to assist, such as a listing of religions.

Direct and indirect discrimination is prohibited on the grounds of religion or belief even if that discrimination is based on an incorrect perception. In common with the sexual orientation regulations, the religion or belief regulations also cover discrimination against a person by reason of their association with others of a particular religion or belief. The regulations also cover discrimination by way of victimisation and harassment. Employers will however be able to rely on the defence of a genuine occupational requirement.

Critics of these draft regulations feel that employers will need more guidance on some of these highly sensitive issues. Certainly any clarification of contentious areas such as religious holidays, dietary requirements, time off for prayers, religious observance would clearly be very helpful. In the absence of such guidance, support should be sought from local community groups, equality advisors and external agencies as to best practice.

Catherine Prest is an Employment law partner at the national law firm Eversheds.