Equal Treatment - Draft Regulations

Draft regulations which deal with some of the issues raised by the Equal Treatment Directive have now been published for consultation.

From a pensions perspective some of the key points are as follows:

Sexual orientation

ft regulations are intended to come into force on 1 Dec 2003. The regulations provide that it is unlawful to discriminate in relation to terms of employment offered, which seems wide enough to include pension provision. However, there is a specific exclusion where access to benefits is dependent on marital status, so benefits limited to spouses would be alright. It also seems to be intended to have a specific provision dealing with occupational pension schemes; the regulations currently just have a heading, but the explanatory notes say "We would welcome your comments on whether it would also be appropriate to have a provision here making it unlawful for a trustee or manager of a pension scheme to discriminate against an employee who is a member of the scheme".

Disability

These draft regulations are due to come into force on 1 Oct 2004 and will amend the Disability Discrimination Act 1995. They provide that direct disability discrimination cannot be objectively justified. In addition, they will remove the current exemption for occupational pension schemes from the duty to make reasonable adjustments (an example given of the impact of this is that a booklet would have to be in a form accessible to a blind member if they would otherwise be at a substantial disadvantage to other members). There are provisions intended to ensure that trustees and managers are liable for their acts of discrimination, but not for discrimination which arises from the application of a scheme rule which they cannot alter and did not set. Trustees and managers will have an objective justification defence to indirect discrimination. However, where the issue is one of the provision of information and the format places a disabled person at a substantial disadvantage, trustees and managers have a duty to take such steps as are reasonable, in all the circumstances, to prevent that. Finally, the existing exemption for small business (those less than 15 employees) will be repealed.

Draft regulations have also been published which amend Equal Pay legislation to reflect several European case law on time limits for bringing actions.

Consultation closes on 24 Jan 2003 and you can click here for copies

For further information please contact Mark Grant on +44 (0)20 7367 2325 or at [email protected]