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Primarily, the Equal Treatment Directive (2000/78/EC) was adopted in November 2000 which in effect gave rise to a series of new measures prohibiting discrimination in employment on the grounds of sexual orientation, religion or belief and age. However, it has been contested that despite the Directive requiring the UK to implement numerous Regulations in order to enhance the legal protection afforded to people discriminated against within the employment sphere, such protection is by no means complete and further scope for development of the law has become apparent. As a result, this paper shall discuss the assessment of the current position in relation to the grounds of sexual orientation and age respectively. Accordingly, it shall be necessary to discuss the ways in which the Employment Equality (Sexual Orientation) Regulations 2003 has improved the position since the Sex Discrimination Act 1975 followed by a critical analysis of the GOR exceptions in order to ascertain whether or not protection under the Regulations is complete. A similar analysis and approach will be taken in relation to the Employment Equality (Age) Regulations 2006. In doing so, this essay will highlight areas of inconsistency and debate which in effect shall reflect the areas in need for further development of the law.
The EE(SO) Regulations came into force on 1 December 2003 which in effect implemented the UK's obligations under the Directive and newly introduced into UK law a direct prohibition on sexual orientation discrimination within the workplace. Under the new Regulations an explicit definition of ‘sexual orientation' has not been provided other than to say that it refers to a person's sexual orientation towards a person of the same sex, opposite sex or the same and opposite sex: therefore covering the position of heterosexuals, gay men, lesbians and bisexuals. However, prior to the implementation of the Regulations under the Directive, numerous attempts were made to create protection for homosexual employees through reliance and use of existing legislation, namely the Sex Discrimination Act 1975. But, the prospect of such protection was short-lived as under the 1975 Act the Courts preferred a narrow interpretation of discrimination ‘on the grounds of…sex' which meant that the SDA 1975 was gender specific and did not extend to cover discrimination based upon related grounds such as sexual orientation. Controversially therefore, for the narrow interpreted purposes of the SDA 1975, ‘sex' related solely to ‘gender' and not ‘sexual orientation' and the only situation in which discrimination could be brought within sex discrimination law was if a homosexual of one sex could show that a homosexual of the opposite sex would not have been treated in the same way. Clearly, the legal protection afforded to people discriminated against on the grounds of sexual orientation prior to the implementation of the Equal Treatment Directive was minimal and often hard to establish. Such difficulty could be seen from the reasoning in the case of Grant v South-West Trains  where a refusal to extend rail benefits to a partner of a lesbian couple was held not to constitute discrimination based upon sex since the relevant comparator in this situation, a male homosexual employee, would also have been refused a travel discount for the benefits of his male partner and therefore was non-discriminatory. On that note, considering that the EE(SO) Regulations cover both indirect and direct discrimination under which the latter occurs where on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons, such discriminatory measures as those implemented in Grant would now be prohibited and contrary to the 2000/78/EC Directive.
In addition, although discrimination on the grounds of a person's sexual orientation was not prohibited by the SDA 1975, attempts were made to bring it within the scope of the Act and increase employee protection by virtue of the Human Rights Act 1998. In Smith and Grady v United Kingdom , a European Court of Human Rights case, it was held that the procedure of conducting investigations by the military police into the applicant's personal lives and subsequently discharging from service those members of the British Armed Forces found to be of homosexual orientation was contrary to Art.8 of the Convention and thus contravened the applicant's right to respect for private life. Fundamentally, the Court was not prepared to accept the justification proposed by the UK Government based upon the argument that such infringement was ‘necessary in a democratic society in the interests of national security…for the protection of disorder, because the presence of homosexuals within the armed forces would have a substantial and negative effect on morale and consequently on the fighting power and operational effectiveness of the armed forces' seen as such attitudes represented a predisposed bias held by a heterosexual majority against a homosexual minority.
In view of this decision, one may question as to whether combining the duties placed upon courts and tribunals under the HRA 1998 to act in accordance with the Convention and that of the decision in Smith and Grady, whether a statutory obligation arises to interpret the SDA 1975 in such a manner so as to offer protection against discrimination on the grounds of sexual orientation? However, this argument has been eradicated by the House of Lords in the joint decision of MacDonald and Pearce where it was reiterated that the SDA 1975 remains restricted to discrimination on the basis of gender and does not embrace sexual orientation discrimination. Therefore, considering that these two cases were decided prior to the implementation of the EE(SO) Regulations 2003, it appears that the Equal Treatment Directive does not provide complete protection to people discriminated against on grounds of sexual orientation as the EE(SO) Regulations 2003 could have rectified a controversial issue and incorporated sexual orientation discrimination within the realms of the SDA 1975 so as to provide potential applicants with increased statutory protection and as a result signifies scope for further development of the law.
Alternatively, it is genuine to state that the Directive has enhanced the legal protection afforded to people discriminated against with respect to sexual orientation discrimination seen as discrimination by way of victimisation is also prohibited and similar to the SDA 1975 and Race Relations Act 1976 there is also an express prohibition on harassment. However, the true increased protection derives from the use of the expression ‘on the grounds of sexual orientation' which is wide enough to ensure that perceptions of sexual orientation are also covered by the Regulations. This in effect ensures that protection from discrimination based upon a perception of an individual's sexual orientation, whether right or wrong, is also prohibited in addition to cases where an individual is discriminated against solely for associating with gay friends or refusing to carry out an employer's instruction to discriminate against gay men. In addition, seen as sexual orientation is recognised as a purely personal and ‘private life' issue the notes to the Regulations emphasise that individuals will not be required to declare their sexual orientation when making a claim as ‘it will be sufficient that they have suffered a disadvantage because of the assumptions made.' Nevertheless, this may be an area for further development in the law as allowing individuals to bring a claim alleging sexual orientation discrimination without even revealing whether or not they are a member of the protected group in question could potentially result in excessive claims or even false malicious claims against employers. Furthermore, the fact that the scope of the protection provided under the EE(SO) Regulations 2003 has been defined in similar terms to the SDA 1975 and RRA 1976 illustrates that the Directive has increased protection for employees as the Regulations cover discrimination on a broad range of grounds such as against job applicants, employees before, during and on termination of employment and more importantly after the employment relationship has ended. This can be contrasted to the position prior to the implementation of the Directive where the HRA 1998 was commonly resorted to for legal protection however did not provide protection for job applicants.
Moreover, as far as protection is concerned, a controversial issue arises in relation to the manner in which the Regulations under the Directive allow a general exception for ‘genuine occupational requirements' (GOR) which in effect lawfully enable employers to treat job applicants and employees differently on grounds of sexual orientation. The general exception which is contained in reg.7(2) applies where ‘having regard to the nature of the employment' and the context in which it is carried out, being of a ‘particular sexual orientation' is a ‘genuine and determining occupational requirement' and it is ‘proportionate to apply it.' Therefore, it appears that such a GOR may suffice where an organisation which provides employment rights advice to homosexual individuals seeks to recruit a homosexual candidate so that the individual will be able to familiarise and build rapport with the organisations clients. Arguably, it may be contested that such an exception may be discriminatory in itself as it may prevent a heterosexual applicant from taking up a post for the sole reason that s/he is not of a specified sexual orientation despite the fact that the candidate may possess the necessary skills and experience which are prerequisite for the post in addition to having past experience of discrimination of a similar nature. Clearly such absurdity cannot suggest that protection to people discriminated against is complete, especially in the sense that the EE(SO) Regulations 2003 are supposed to promote a principle form of equality whereby members of all kinds of sexual orientation are equally protected. Therefore, using the scenario above clearly demonstrates that heterosexuals despite being the majority group are not equally protected by the law and thus highlights internal contradictions within the Regulations and potential grounds for development of the law in relation to sexual orientation discrimination.
Furthermore, a further flaw in the protection offered to people under the EE(SO) Regulations and a key area for development of the law in relation to sexual orientation discrimination is revealed when one considers the nature of the GOR exception in relation to perceptions of sexual orientation. The exception can be seen as directly contradictory to the entire principle that an individual's sexual orientation need not be revealed and thus can be kept private as using the example of where an employer uses a GOR to require employees in a particular post to be of a particular sexual orientation, could it not be argued that the employer is effectively imposing an additional requirement that sexual orientation be revealed otherwise how else is the employer to verify whether or not the candidate is of the ‘correct' orientation? Also, in determining whether a person qualifies for the requirements of the post, an employer is permitted to resort to two differing tests. Firstly, a simple test where ‘the person to whom that requirement is applied does not meet it' or alternatively a test whereby ‘the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied that the person meets the requirement.' Undoubtedly, it appears that the latter test legitimises the use of mere assumptions made by an employer regarding sexual orientation in denying an individual employment as ‘in the absence of actual knowledge of an individual's sexual orientation, presumably, this can only be based on dress, appearance, presentation and other conduct: the very stereotyping that discrimination law is supposed to address.' On that note, it evidently appears that protection under the Equal Treatment Directive is by no means complete as scrutiny of the above test reveals that an individual may be denied a job for no good reason should the employer be mistaken in his perception and on the other hand, if the employer is right regarding one's sexual orientation then the individual suffers degrading humiliation derived from the employer having made assumptions based on stereotypical views about his/her orientation. Accordingly, ‘the ability of employers to rely on perceptions of sexual orientation in this way seems particularly contradictory when it is compared with the fact that the definition of direct discrimination expressly covers discrimination and harassment based on such perceptions' which clearly raises the argument that the EE(SO) Regulations 2003 are by no means satisfactory and further development of the law in this area is promptly required.
The GOR exception also raises a fundamental problem in relation to whether or not it is possible to categorise an individual's sexual orientation seen as in order for the exception to operate, being of a ‘particular sexual orientation' must be a genuine occupational requirement. However, does this not implicate that in order to determine whether or not an individual meets the requirement of a ‘particular' orientation that it must firstly be necessary to define that individual's sexual orientation? Conversely, it is fair to state that in modern society the concept of human sexuality is a complex and fluid matter especially with improved scientific technology people are eager to try out different sexual experiences. Therefore, with a lack of statutory guidance as to what constitutes a ‘particular sexual orientation' it is not clear as to which types of circumstances will render the GOR exception operative and which types will remain prohibited e.g. would it matter if one was not sure of his/her own sexuality and thus unable to clarify their sexual orientation or ‘would past homosexual experiences disqualify an individual from a job that imposes a heterosexual GOR, even though that individual is now in a heterosexual relationship?' Evidently, such questions reveal that protection under the Equal Treatment Directive is incomplete and further clarification of the law in relation to what constitutes a ‘particular sexual orientation' is much needed.
In contrast, the Equal Treatment Directive has also obliged the UK Government to provide legal protection to people discriminated against on the grounds of age. Accordingly, age discrimination (Ageism) commonly occurs where there is an inappropriate and arbitrary use of age limits and criteria in decision making. For example, within the employment context such discrimination may take the form of applying age restrictions in relation to recruitment, training opportunities, pay, promotion, redundancy and even retirement. However, laws banning age discrimination in the workplace came into effect on 1 October 2006 by virtue of the Employment Equality (Age) Regulations 2006 which in effect prohibit age discrimination in the above contexts. Similarly, as with the other Regulations on equality, protection is afforded against direct and indirect discrimination, harassment and victimisation. Debatably however, protection under the age Regulations is by no means complete as unlike other forms of discrimination both direct and indirect discrimination can be objectively justified and therefore it is permissible to directly discriminate on the grounds of age in certain circumstances provided that the less favourable treatment is a ‘proportionate means of achieving a legitimate aim'. Article 6 of the Directive provides specific examples of differences of treatment which can be justified and include exceptions such as the setting of age requirements to ensure the vocational integration of people in a particular group: namely young people, older workers and persons with caring responsibilities. However, with a lack of definition or interpretive article in the directive, what exactly constitutes a ‘young person' and who is an ‘older worker' considering that those in between these ages can not form part of this allowable exception? Therefore, it appears that such complexities will be left to the Courts to decide adding to uncertainties and increasing the scope for development of the law in this area. What perhaps is more interesting is that the age Regulations aim to prevent the use of words such as ‘young' and ‘older' in employment as they imply a sense of indirect discrimination however, such words are used in the directive itself which ultimately defeats and contradicts the intentions of the 2000/78/EC directive.
Furthermore, although the age Regulations are intended to provide increased protection to both older and younger employees, it appears that younger employees are at a greater disadvantage as there is a general exemption concerning the national minimum wage whereby it is permissible for employers to pay the lower rate for those under 22 and 18 years without it amounting to age discrimination. Evidently, such objective discrimination is barefaced discrimination against the younger person but he or she will be prevented from claiming this. Also, it appears that exceptions such as ‘service related pay and benefits' which entitle employers to objectively justify differential treatment relating to salary scales, holiday entitlement and company cars etc dependant upon one's length of service towards an organisation ‘may amount to [indirect] age discrimination as younger people who have not served the necessary time required may suffer detriment'. Clearly such factors again highlight a need for development of the law relating to age discrimination.
Fundamentally, a greater issue arises in relation to the concept of Retirement. Prior to the Regulations taking effect, employees over 65 were not entitled to claim unfair dismissal. However, the regulations have afforded greater protection to the older employee as an employee of any age can now claim unfair dismissal. Nevertheless, this protection is by no means complete as the Regulations set a ‘default retirement age' of 65 whereby a dismissal of an employee at or above this age will not be discriminatory provided the reason for dismissal is retirement. Controversially, such a provision restricts employees ‘to a right to request working beyond that age, a request which employers would be bound to consider, but not to accede to'. However, a failure on the employer's behalf in this regard may render the dismissal unfair which does offer the prospect of protection but only minimal. Alternatively, flexibility is provided in favour of an employee as parties can agree retirement terms whereby the default retirement age need not apply and will be substituted by the new agreed term. A significant minority of people do not, however, have such a term in their contract of employment and thus ‘have no security, knowing that their employer can legitimately dismiss them at the default or new retirement date, provided a procedure of information and consideration is followed'. Also, there are further exceptions such as complying with statutory authority, safeguarding national security and positive action in addition to the controversial exception that protection under the Age Regulations is limited to employment and does not extend to cover the supply of goods and services which have ultimately raised the argument that such a vast amount of exceptions and exemptions towards age discrimination have largely rendered the provisions ineffective. Additionally, seen as we are in the early stages of this new law, it appears that development of the law will be required in relation to further issues such as whether or not age should be collected on a separate monitoring form rather than the job application form itself in addition to questions regarding the validity and meaning of words used within job advertisements, in particular the use of phrases such as ‘experienced' or ‘energetic' which will need defining in order to prohibit indirect age discrimination and ensure compliance with the Equal Treatment Directive.
Conclusively, it appears that the Equal Treatment Directive (2000/78/EC) has afforded greater protection to those discriminated against on grounds of sexual orientation as it has vastly improved the protection which was previously available under the SDA 1975. However, upon analysis of the practical application of the GOR exceptions within the Regulations has revealed some fundamental contradictions which have widened the scope for further development of the law in this area. Clearly, the EE(SO) Regulations intended to provide protection against the use of discrimination based upon perceptions and the definition of direct discrimination meant that individuals were not required to reveal their actual orientation in order to claim protection, and yet it appears that upon practical examination, the GOR exception will require one's sexual orientation to be revealed. Similarly, it appears that the GOR exception enables an employer to use such perceptions in deciding whether or not an individual meets a GOR which in effect decreases employee protection and contradicts the intentions of the Directive. In addition, the Directive fails to appreciate that sexual orientation is a fluid concept and thus incapable of coherent definition which raises further practicality difficulties in the application of the GOR exception. Alternatively, the Age Regulations have somewhat improved the position for both elder and younger employees as discrimination on the grounds of age, age group or apparent age is now prohibited. However, considering the numerous exceptions and exemptions to the prohibitions coupled with the fact that direct discrimination can be objectively justified has lead to the argument that the scope of protection available under the Age Regulations has been rendered largely ineffective. Therefore, it appears that in order to combat age discrimination in employment, the Government is required to go further than the Directive and ultimately reduce the number of possible exceptions. Significantly, such a statement highlights the fact that current protection under the Directive is by no means complete and in effect there is plenty of scope for further development of the law in this area.