Upcoming changes to discrimination law

(Written by Dr Peter Jepson and published in 'Employee Relations Briefing' on 4th September 2000 by Croner@CCH )

Just when many of us thought that discrimination law was settling down, and that most of the battles over sex and race discrimination had been won, significant changes to discrimination law are in the pipeline. This article seeks to consider the nature of these changes.

Race Relations Bill

The Race Relations Bill, which is making its way through parliament, seems to be receiving widespread support. The Commission for Racial Equality welcome its introduction and the only real criticism the legislation has received is that it is not radical enough ñ in the sense that the government needed to be persuaded that the police force should be liable for both direct and indirect race discrimination. In truth, this legislation is rather limited in its form, with it lacking radical zeal - hence the widespread support for its introduction.

However, it seems that, before this Race Relations Bill is made law, the Home Office are beginning to acknowledge that further change is needed. Indeed, the new ëRace Directiveí[endnote1] of the European Union requires the government to look again at UK Race Laws to see what additional changes may be needed. What is more, as this article will argue, much more radical measures - in the form of the draft ëCharter of Fundamental Rights in the European Unioní - are making their way through the corridors of power within Europe.

Complying with the EU Race Directive

The EU Race Directive requires member states to introduce laws to prohibit both direct and indirect discrimination (including harassment) based on ëracial or ethnic originí by the 19th July 2003. Given that, in the UK, we have had race discrimination laws since the early 1970ís, we can be reasonably confident that, as a nation, we are ahead of most of the other member states when it comes to progressive anti-race laws[e2]. Indeed, the Race Relations Act [1976] already prohibits direct and indirect discrimination in employment, membership of trade unions, education, and access to the supply of goods and services, with the Race Relations Bill extending the provisions to cover public bodies such as the police. Despite which, additional changes may also be necessary to ensure that domestic race laws cover all public and private bodies that provide social security and healthcare (including charities)[e3].

The Definition of Racial Discrimination

The first thing to note about the EC Race Directive, is that the definition of racial discrimination, on face value, is potentially different to that which has been used in the United Kingdom. Article 2 of the EU Race Directive specifies that the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. This expressly excludes nationality[e4] and fails to include a term like ëcolourí, which can be found in s.3 of the RRA 1976 in defining a racial group. However, the exclusion of the term ëcolourí from the EU Race Directive should not be considered a serious omission given the history of the European Court of Justice in interpreting matters through a purposive rather than literal approach.

Direct Discrimination

Certainly the definition of direct discrimination, used by the EU Race Directive, can be regarded as relatively synonymous with that used in the UK. By way of illustration, under the Race Relations Act [1976] direct discrimination relates to a person who "on racial grounds treats another less favourably than he treats or would treat other persons". By comparison, the Race Directive is similarly worded, in that direct discrimination shall be "taken to occur when one person is treated less favourably than another is, has been, or would be, treated in a comparable situation on grounds of racial or ethnic origin"[e5].

Indirect Discrimination

While the direct discrimination provisions display synonymity, it is clear that some changes will probably be needed for indirect discrimination provisions. This is because the RRA 1976 uses rather complex and convoluted wording to make a relatively straightforward point. Indeed, the ërequirement or conditioní, ëcan complyí and ill-defined ëjustificationí provisions with the RRA have caused many of us a few sleepless nights[e6]. In comparison, under the EU Race Directive, indirect discrimination occurs "where an apparently neutral provision, criterion or practice that puts persons of a racial or ethnic origin at a particular disadvantage can only be objectively justified as a legitimate aim, and means of achieving that aim, if it is considered appropriate and necessary". This is much more specific than the RRA provisions, which can only be regarded as consistent if the courts follow the Bilka-Kalfaus[e7] ëobjectively justified as necessaryí approach of the European Court of Justice. Thus, it is pleasing to report that the Home Office have noted this differential, and intend to consult practitioners about the possibility of amending the RRA indirect discrimination provisions.

Burden of Proof

Some change can also be expected to the RRA 1976 provisions with regards to the burden of proof ñ if only to make the UK statute less ambiguous.

In most legal cases the burden of proving a case rests on the applicant. However, in discrimination law cases this can be problematic due to the fact that the evidence is often in the hands of the defendant and silence on their part would almost certainly destroy any prospect of establishing liability. Consequentially, the EU Race Directive provisions shift the burden of proof to the defendant where a prima facie case is established. In effect, this means that, consistent with the approach taken in the case of King v The Great Britain China Centre[e8], the defendant will effectively be required to disprove discrimination to escape liability.

While this may seem to be a negative measure - in the sense that it seems to deny the principles of natural justice in the form of a defendantís right to silence and innocence until proven guilty ñ it is only applicable in civil cases and it follows an approach that has been taken for a number of years in the UK and Europe[e9].

Defence of Rights

The EU Race Directive proposes the setting up of bodies for the promotion of equal treatment of all persons, without discrimination on grounds of racial or ethnic origin. At first glance, this may suggest that some form of Race Relations Commission should be established in each member state[e10]. However, it is clear that the EU envisages these bodies may form part of agencies charged, at national level, with the defence of human rights or the safeguarding of individual rights. This suggests a form of encompassing commission that would deal with human rights, sex and race discrimination issues. Given this lead from the EU, it will be interesting to see if we could soon expect our government to merge the Commission for Racial Equality with the Equal Opportunities Commission, for the purpose of promoting and protecting human rights in general.

However, defence of rights in the EU Race Directive is not limited to promotion of equal treatment. Indeed, the Directive will require the UK race laws to be amended so that associations, organisations or other legal entities - which have a legitimate interest in ensuring that the provisions of the Directive are complied with ñ may engage in any judicial or administrative procedure for the enforcement of obligations under this Directive. This could mean that the Commission for Racial Equality, and/or trade unions, could appear in any relevant case. The only limitations on this right seem to be that the associations/organisations need to be acting in support of, or on behalf of, the complainant and with his/her approval.

Certainly, this could result in some interesting scenarios. For example, the Jewish Board of Deputies could seek to support and/or represent, at any proceedings, a Jew who suffers discrimination. Likewise, trade unions could use the opportunity to display solidarity with workers who suffer race discrimination, by effectively facilitating the role of complainants ñ who may be nervous about bringing a claim - by being the legal instigator of the proceedings.

Further European Changes in the Pipeline

While the Race Directive is open for immediate implementation, much more radical measures are being considered in the corridors of power. The ëCharter of Fundamental Rights of the European Unioní is at its consultative stage with, no doubt, much political discussion before it is approved by member states[e11].

The Charterís implications for reform of domestic law are indeed radical. For example, the Charter of Fundamental Rights of the EU - which is a new Charter that should not be confused with the European Convention on Human Rights - proposes to tackle a wide range of human rights issues, such as freedom of thought, conscience and religion etc. It is Article 21, of this new EU Charter, that is likely to be the most relevant to this article, since it is much more extensive than the ECHR, seeking to prohibit discrimination based on grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion Ö disability, age or sexual orientation.

Most of this criterion should not be a problem, given that in the UK we already have laws that prohibit sex, race, and disability discrimination. Should this Human Rights Charter be adopted by the European Union, it seems inevitable that new primary domestic legislation will be needed to prohibit discrimination on grounds of genetic features, sexual orientation, age or religion. No doubt the introduction of such laws will be politically controversial, with sexual orientation always a topical area. Laws prohibiting age discrimination should generally be welcomed and so could those that deal with genetic features ñ i.e. once that the EU provide a definitive explanation of exactly what these are and the scope of any legislation needed.

However, it is with regards to religion that the temperature is beginning to rise. The Christian Movement is already voicing its concerns that, among other things, this anti-discriminatory EU Charter could be a potential threat to religious schools[e12]. Without wishing to pre-empt this discussion, it is an interesting thought that, if the Charter provisions had been in force 2000 years ago, then Pontius Pilate could well have been acting unlawfully in operating his trial of Jesus. Indeed, such an International Charter would certainly have made religious and political intolerance unlawful and may well have gone a long way to preventing the persecution of Christ and his Apostles.

In conclusion, the immediate forthcoming changes to our domestic discrimination laws are pretty mundane. However, once again, the European Union is forcing the pace with some quite radical and progressive laws that are being discussed in the corridors of power. Interesting and controversial times certainly lay ahead.

Dr Peter Jepson.

Sept 2000.

Endnotes.

[e1] 2000/43/EC

[e2] All member states have laws to combat racist violence and the incitement to racial hatred, and a large number have enacted specific legislation to tackle racial discrimination in certain aspects of employment. However, it seems only Ireland, the Netherlands, and the United Kingdom, have covered areas of everyday life such as access to goods and services and education.

[e3] The Home Office have indicated, as a result of the EU Race Directive, a willingness to amend domestic race laws so as to remove the exemption of Charities from the Race Relations Act 1976.

[e4] Because it is dealt with by separate Articles of the Treaty of Rome (in particular Articles 12 and 39) and by existing secondary legislation.

[e5] This is consistent with the ëbut forí test determined in James v Eastleigh Borough Council [1990] IRLR 298.

[e6] Over the years the courts have moved from a reasonably justified condition to an objectively justified as necessary condition.

[e7] [1986] IRLR 317.

[e8] [1991] IRLR 513.

[e9] In the UK via the case of King v Great Britain China Centre [1991] IRLR 513 and in the EU via OíFlynn v Adjudication Officer [1996] ICR 2417.  See also the Burden of Proof Directive 97/80/EC.

[e10] With broadly similar powers and functions to that of the Commission for Racial Equality in the UK.

[e11] See ëBlair urged to veto EU rights charterí The Daily Telegraph 1st August 2000. This so called ëurgingí stemming from Francis Maude, the Conservative foreign affairs spokesman.

[e12] See ëEuropean Threat to Religious Freedom ñ A response to the European Unionís Employment Directiveí by Colin Hart, Simon Calvert, Mike Judge and published by The Christian Institute.