Sexual orientation discrimination: frequently asked questions

Sue Nickson of Hammonds Solicitors answers some frequently asked questions on the new Regulations outlawing discrimination on the grounds of sexual orientation, which come into force on 1 December 2003.

We have received a complaint about alleged harassment from an employee who is not gay but is being taunted and called names inferring that he is. Is he protected under the Employment Equality (Sexual Orientation) Regulations 2003?

Yes. The Regulations cover any harassment that is based on sexual orientation. It is irrelevant whether the person who is being harassed is of the particular sexual orientation concerned. If the comments and abuse are of a nature linked to the issue of a person's sexual orientation (or that of someone else) these will amount to unlawful harassment even if they are based on a misconception or inaccurate speculation. A complaint of this nature should be taken seriously and investigated properly.

We have received a request for an employment reference from an employee who has recently left our company. I don't feel able to recommend the employee as I wasn't particularly comfortable about his open attitude to his homosexuality, which I don't think is appropriate for the workplace. Can I say this in the reference?

The Employment Equality (Sexual Orientation) Regulations 2003 provide protection from unlawful discrimination that takes place after the employment relationship has come to an end where the discrimination complained of arises out of and is closely linked to that relationship. If you were to state in the reference that you are unwilling to recommend the ex-employee for a reason connected with his sexual orientation, this would amount to direct discrimination and he would be able to bring a claim against you. You should limit the content of the reference to factual matters regarding, for example, the ex-employee's ability to carry out his duties. His sexual orientation should not be a relevant factor in your response.

Our company's medical insurance scheme provides benefits to employees and their spouses only. It does not cover unmarried partners including same-sex partners. Is this lawful under the new legislation?

The Employment Equality (Sexual Orientation) Regulations 2003, regulation 25 provides that the Regulations do not make it unlawful to grant benefits by reference to criteria based on marital status. As it currently remains unlawful for same-sex couples to marry in the UK, rules based on marriage cannot be challenged as indirectly discriminatory on the grounds of sexual orientation. As long as unmarried couples are treated the same whether they are heterosexual or same-sex partnerships, there will be no discrimination on grounds of sexual orientation.

Do we need to introduce a new policy dealing with issues of sexual orientation in the workplace?

Although there is no strict legal requirement to do so, all employers should already have an equal opportunities policy in place as a matter of good practice. This will need to be updated to include reference to avoiding discrimination on the grounds of sexual orientation and promoting equal treatment. As this is a new area of law, it would also be sensible to combine the introduction of those amendments with appropriate training for employees and for those who will be responsible for implementing the policy and dealing with disciplinary or grievance issues in this area. This will include additional training where necessary for those persons who will be responsible for the recruitment of new staff.

If there is no existing equal opportunities policy in place, employers should take the opportunity to seek advice in drafting a policy that will include all of the relevant issues, including sexual orientation.

Should employers carry out an 'audit' of the sexual orientation of their staff? Can an employee who refuses to provide this information be disciplined?

There is no legal requirement under the Employment Equality (Sexual Orientation) Regulations 2003 for employers to hold information on the sexual orientation of their employees. If an employer wishes to include information on sexual orientation as part of its equal opportunities monitoring procedure this should be carried out in the same way as any other monitoring of this nature. The employer should inform the employees of the purpose of such monitoring, and how the information will be stored and used, and there should be an assurance of total confidentiality within that process. The employer should also ensure that this sensitive personal information is processed in accordance with the provisions of the Data Protection Act 1998.

Employers cannot force employees to provide this information; participation must be voluntary. Any less favourable treatment of an individual as a result of his or her refusal or reluctance to co-operate in this regard will amount to victimisation contrary to the Regulations and the employee will have the right to bring a claim before an employment tribunal.

Next week Sue Nickson answers more questions regarding discrimination on the grounds of sexual orientation.

Sue Nickson is a partner and National Head of Employment at Hammonds Solicitors (sue.nickson@hammonds.com)

Further information on Hammonds Solicitors can be accessed at www.hammondsuddardsedge.com