In December 2003 new laws came into force to protect staff against discrimination on grounds of sexual orientation. Osborne Clarke partner and employment law specialist Victoria Parry investigates.
Topic: New Sexual Orientation Laws
In December of this year new laws will come into force to protect staff against discrimination on the grounds of sexual orientation. . There are currently no laws preventing employers from treating staff less favourably on the basis of their sexual orientation. This means that, at the moment, an employer may currently refuse to promote someone because he is gay.
Who will be protected by the regulations?
Both job applicants and current employees will be protected. Former employees will also be protected so long as the discrimination arises out of and is closely connected with the employment relationship, for example where a former employer gives a poor job reference because it dislikes lesbian employees.
Will the legislation only apply to gay and lesbian people?
No. The legislation will protect everyone – i.e. those who are gay, lesbian, bisexual or heterosexual. It will also protect those whose employers or colleagues believe them to be of a particular sexual orientation, regardless whether this is true. It will even protect those who are treated less favourably because they associate with people of a particular orientation.
How could an employer discriminate against an employee on grounds of orientation?
By treating him less favourably in any way, for a reason connected to his sexual orientation. An employer can also discriminate in a more subtle way, by applying a rule or having a practice which puts people of a particular sexual orientation at a disadvantage. For example, a rule that only staff with children receive additional holiday would prejudice gay and lesbian employees, even though it is applied across the board. Another example is that benefits in kind (such as health cover) are often only available to partners of the opposite sex. From December of this year this will be unlawful.
Harassment of someone by reason of their sexual orientation is also unlawful under the regulations, as is victimisation of a person on the ground that they have made a claim for breach of the regulations, or supported another who has made such a claim.
Which employers have to comply with the regulations?
All employers must abide by the regulations regardless of the size of the organisation or whether it is in the public or private sector.
What aspects of employment do the regulations apply to?
The regulations apply to all aspects of the employment relationship, including recruitment, terms and conditions, promotions, transfers, dismissals and vocational training. They will also apply to any references given after termination of employment.
Should employers ask employees to reveal their sexual orientation?
The regulations do not require employers to do so. Some employers may decide to carry out a sexual orientation audit, in order to check the make up of their organisation, and on the basis that if they know of a person's orientation, they will be able to avoid discrimination. An employer who carries out this exercise should tell its staff that there is no obligation to respond. It should also explain how the information is to be used and stress that it will be treated as confidential. In reality employers will find it hard to glean this information as most employees are sensitive about disclosing it.
What if a job requires that a person is of a particular sexual orientation?
It is hard to think of many cases where this would apply but if sexual orientation is a genuine occupational requirement for a job, for example a senior member of staff in a gay or lesbian charity, then the employer could make sexual orientation a requirement of the job but only if their sexual orientation was a real and determining factor in their ability to do the job. In the marketing services industry it is highly unlikely that this threshold will ever be met.
What about transgender people?
Discrimination against people who have undergone gender reassignment treatment is a separate issue and is not related to sexual orientation. This is covered by the Sex Discrimination (Gender Reassignment) Regulations 1999.
What changes will employers need to make when the regulations come into force?
Guidance for employers is currently being finalised but employers would be well advised to cover sexual orientation in their equal opportunities policy. They should also make staff aware that discrimination based on sexual orientation is unlawful and will not be tolerated by the organisation. Employers might also wish to include this as part of their disciplinary rules. Employers who want further information should read the ACAS guidance at www.acas.org.uk.
What are the penalties for getting it wrong?
Employers who discriminate against staff on the basis of their sexual orientation, or who have staff who do so, will be liable to pay unlimited damages to the affected employee. The damages can amount to six figure sums in cases where the employee has had long periods out of work as a result, or who has suffered injury to his feelings. It will also have to pay its own legal costs and suffer loss of management time, spent dealing with the case. An organisation that is found guilty of sexual orientation discrimination may also face adverse publicity.
