Indirect discrimination, employment and equality in the workplace: a comparison between the UK and Australian equality legislation

Abstract

The Directive 2000/78/EU establishes a general framework for equal treatment in employment law and prohibits direct and indirect discrimination on several grounds, including religion or belief. The Equality Act 2010 implements this provision in the UK on the principle of equal treatment, and a rule or dress code that targets a specific religious group, such as a ban on Muslim women wearing hijab would be direct discrimination. A more neutral dress code which applies equally to all employees may have an indirectly discriminatory effect on those who wish to wear religious clothing or symbols at work such as a general ban on wearing religious clothing. The central issue in English law in most cases will be justification and whether the employer had a legitimate aim and if the ban was proportionate under Article 9 of the European Convention of Human Rights (ECHR). In Australian law there is a policy that bans religious discrimination on an institutional level and there is a free exercise clause under section 116 of the constitution. There is a more flexible policy because is no protection of religious belief in the equality legislation towards the hijab as a right of the employee in the workplace. Both jurisdictions have socio-economic as well as organisational policies on diversity management informed by a multilevel framework that contributes to integrating the individuals and organisations in the workplace. This paper adopts a comparative approach between the two common law systems where the UK follows a multinational framework based on the Equality Act and the ECHR case law and the Australian accept the federal and state law which have concurrent jurisdictions in the legal framework.