Sexual orientation discrimination: the new Regulations

Sue Nickson of Hammonds Solicitors offers guidance on the new Regulations outlawing discrimination on the grounds of sexual orientation, which come into force on 1 December 2003.

The Regulations

The Employment Equality (Sexual Orientation) Regulations 2003 come into force on 1 December 2003. They implement the provisions of the EU Equal Treatment Framework Directive 2000/78/EC in relation to the prohibition of discrimination on the grounds of sexual orientation in employment and vocational training.

Sexual orientation is defined as being sexual orientation towards:

  • persons of the same sex;

  • persons of the opposite sex;

  • persons of both sexes.

    The definition does not cover sexual preferences or practices or fetishes such as sadomasochism or paedophilia.

    Discrimination on grounds of sexual orientation includes discrimination based on person A's perception of person B's sexual orientation even where that perception is wrong. It also covers discrimination by A against B on the grounds of person C's sexual orientation. That is to say, it would be unlawful to discriminate against a person because he or she associated with another person of a particular sexual orientation or because he or she refused to comply with an instruction to discriminate on grounds of sexual orientation.

    The Employment Equality (Sexual Orientation) Regulations 2003 do not cover discrimination in relation to occupational pension schemes. This part of the Directive will be implemented by separate legislation, the Employment Equality (Sexual Orientation) Regulations 2003 (Amendment) Regulations 2003, which are also due to come into force on 1 December 2003.

    Direct discrimination

    Direct discrimination will occur where an employer treats an individual less favourably than others 'on the grounds of sexual orientation'. For example, it would be unlawful discrimination for an employer to choose not to offer a job to an applicant who had all the necessary skills for the job on the basis that she was a lesbian. It would also be direct discrimination to choose not to promote a particular employee because he or she had refused to follow an instruction to discriminate against gay men.

    Indirect discrimination

    An employer (A) indirectly discriminates against an individual (B) where:

  • A applies to B a provision, criterion or practice that A applies equally to other persons; and

  • that provision, criterion or practice puts persons of B's sexual orientation at a particular disadvantage; and

  • B suffers that disadvantage; and

  • A cannot show that the provision, criterion or practice concerned is a proportionate means of achieving a legitimate aim, that is to say, a proper business requirement that cannot be achieved by some other means.

    The granting of benefits by reference to marital status is not, however, unlawful under the Regulations. As long as the same rules are applied to unmarried heterosexual and unmarried homosexual couples there will be no unlawful indirect discrimination on the ground of sexual orientation in providing employment-related benefits to spouses or widow(er)s only.

    Victimisation

    It will be unlawful for an employer (A) to treat an individual (B) less favourably than it treats or would otherwise treat other persons by virtue of something done by B under or in connection with the Regulations. For example, it will be unlawful victimisation for A to treat B less favourably than others because B has brought or given evidence in proceedings under the Regulations or made an allegation that another person has acted in breach of the Regulations.

    Harassment

    Harassment will occur if, on grounds of sexual orientation, a person is subjected to unwanted conduct that has the purpose or effect of:

  • violating that person's dignity; or

  • creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

    Conduct will be considered to have the effect of violating dignity or creating an offensive environment only where that conduct 'should reasonably be considered' as doing so, taking account of all of the circumstances. This consideration necessarily requires that the perception of the conduct by the person on the receiving end is taken into account. The over-sensitive nature of a particular individual will therefore be relevant where that person takes offence over what others may consider a perfectly innocent comment.

    Name-calling that is linked to sexual orientation or 'teasing' workers because of their sexuality (or that of others with whom they may associate) and telling jokes about gay people will amount to unlawful harassment. Employers may be held vicariously liable for such action (see Liability).

    Liability

    As with other forms of unlawful discrimination, employers will be vicariously liable under the Regulations for a person's discriminatory actions where they are carried out in the course of that individual's employment. 'In the course of employment' has generally been given a fairly wide interpretation by courts and tribunals. Employers will be able to escape vicarious liability for such unlawful actions only where it can be shown that they took all reasonably practicable steps to prevent the discrimination occurring.

    Claims

    Service requirements

    There are no minimum service requirements for bringing a claim under the Employment Equality (Sexual Orientation) Regulations 2003.

    Time limits

    A claim of discrimination under the Regulations must be brought within three months of the date of the act complained of.

    Questionnaires

    As with sex, race and disability discrimination, an individual may submit a questionnaire asking the employer to provide information in relation to the allegations of discrimination that have been made. The employer has eight weeks within which to respond and the tribunal may draw inferences from any failure to respond or any inadequate response received.

    Burden of proof

    Once the applicant has established a prima facie case of discrimination on the facts presented to the tribunal, it is for the respondent to prove that there has been no unlawful discrimination.

    Remedies

    If an employment tribunal upholds a complaint of unlawful discrimination on the grounds of sexual orientation it may make:

  • a declaration that there has been unlawful discrimination;

  • an award of unlimited compensation;

  • a recommendation that the employer take certain steps to prevent the discrimination from re-occurring.

    Compensation is likely to be assessed in the same manner as compensation for other forms of unlawful discrimination, with the potential for very large awards in the most serious of cases.

    Genuine occupational requirements defence

    There will be no unlawful discrimination where an employer treats an employee less favourably on the grounds of sexual orientation where possessing a particular sexual orientation is a 'genuine occupational requirement' for the post in question. This exception also applies to promotion, transfer, training or dismissal from the post. The nature and context of the employment are to be considered in determining whether being of a particular sexual orientation is a genuine occupational requirement.

    There is a further (and somewhat controversial) exemption that provides that, where employment is for the purposes of an organised religion, an employer may apply a requirement related to sexual orientation so as to comply with the doctrine of the religion or, due to the nature and context of the work to be carried out, in order to avoid conflicting with followers' religious convictions. This aspect of the new legislation has been criticised and there may be further consultation on this point before the Regulations come into effect in December.

    Next week's article will consider some frequently asked 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