Legal Q&A: Sexual orientation

Michael Bradshaw of Charles Russell offers guidance on key legal considerations arising from the new Regulations outlawing discrimination on the grounds of sexual orientation.

Q An employee has complained that he is being verbally abused by other staff on the basis that his son is gay. Is this covered by the new Equality Regulations?

A The regulations came into force on 1 December 2003. They provide protection in the workplace against all forms of discrimination based on sexual orientation. They also expressly cover harassment, which also covers verbal abuse. In this scenario, the worker is being harassed due to the sexual orientation of a member of his family, and not on the basis of his own sexual orientation.

However, this is covered under the new regulations, which protect against discrimination on the grounds of sexual orientation, whether it is the orientation of the victim, or in this case, someone else.

Q An employee has stated that we are discriminating on the grounds of sexual orientation because our insurance benefits only extend to spouses. Do we have to change the availability of these benefits?

A. The regulations expressly exclude the provision of benefits that are dependent on marital status. Without this exclusion, it would amount to unlawful discrimination.

Any benefits available to opposite sex partners that do not require them to be married are not covered by the exception, and such provisions would be discriminatory.

In the Queen's Speech, the Government announced its intention to introduce legislation for 'civil partnerships', which would give same sex couples rights and obligations akin to those of married couples. This is expected to mean the exception will be removed at some stage in the future, although there is no timetable for this yet.

Q An employee has asked to take leave and change her working hours as she and her female partner will be adopting a child. Are these rights available to same sex couples, and can you ask for evidence of a relationship?

A Rights for same sex couples were included within the provisions on paternity and adoption leave, as well as flexible working, all of which were introduced from 6 April 2003.

These rights extend to 'partners', which expressly covers persons of the same sex and those of different sexes, and who live with the mother or adopter in an enduring family relationship, but are not a relative. This partner must have the main responsibility (together with the mother or main adopter) for the upbringing of the child.

Employers are not allowed to seek any evidence of a relationship or whether the worker is in fact going to have responsibility for the child. The rights are based on self-certification on the employee's part and employers should not investigate or enquire further about the private lives of their staff.

Q Can an employer expressly hire people of a particular orientation?

A The regulations do provide for recruitment based on sexual orientation, but only where it can be shown to be a genuine occupational requirement for the job position.

The particular sexual orientation must be a specific requirement of the job, and not just a preference.