Employment law: Harriet Harman versus The Pope

Harriet Harman versus the Pope made a splendid story earlier in the month – when his holiness weighed into the debate about the Equality Bill which is going through the Lords at the moment.

The law behind all this is, of course, much drier. But quite possibly, Ms Harman has a choice of either offending the Pope or Brussels.

In November last year the European Commission gave Britain two months to sort itself out after it gave us a “reasoned opinion” that we had failed to implement two Equal Treatment Framework Directives correctly.

Specifically Britain had failed to implement one directive properly by, not banning instructions to discriminate against disabled people and by not giving disabled adequate appeals procedures. We have also, apparently left religious employers too much freedom to discriminate, to comply with this directive. The Pope takes issue with this and wants the church to be able to discriminate all it likes.

As for the other directive, Britain has been told by Brussels that its definition of indirect sex discrimination is too narrow. We should include potential indirect discrimination too. Indirect discrimination is already quite nebulous. It is where an employer has a policy that applies to all staff – but the policy has a disproportionately harsh affect on one particular group, such as forcing Sikh staff to remove their turbans in order to wear a uniform cap.

The two months for putting all these failures right is now nearly up and nothing much has happened – except for row started by the pope (and a serious discussion about whether it is OK to discriminate against unreliable people in a job ad). Britain has asked the EC for extra time to put things right.

It may well be that the Equality Bill is intended to get us out of trouble with the Commission. It is hard to say whether it will succeed. Religious employers look set to keep their right to discriminate, at least in part.

Peers are currently going through the 600 page equality bill with a fine tooth comb. The plan is for the Bill to receive Royal Assent in April, with implementation in October, though there is no concrete commitment to this time frame.

Once it is implemented, employers will have nine ‘protected characteristics’ they will have to look out for. These are age, disability, ‘gender reassignment’, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Employers are already looking out for all of the above, but The Bill will harmonise existing piecemeal legislation and give a single definition for discrimination and harassment. There are new things too. Staff will be able to make claims for two types of discrimination at once, and they will also be protected from discrimination they might suffer from their association with someone who has a protected characteristic.

There will, however, be nothing to outlaw discriminating against the unreliable or feckless.

Peta Fluendy is employment law consultant at Sutton based De Brett and Co
www.debrettlaw.co.uk
employmentlawconsultant@gmx.com

Tags: discrimination, employment law, Equality Act, Harriet Harman, staff

Posted by Peta Fluendy on Sunday, February 14th, 2010 at 1:00 pm.

Filed under Ask an Expert, Careers, Data Bank, Equality, News, SMEs, Tagged as: , discrimination, employment law, Equality Act, Harriet Harman, staff.