Law on sexual orientation discrimination at work

The law relating to discrimination in the workplace on the grounds of a person’s sexual orientation is contained in the Employment Equality (Sexual Orientation) Regulations 2003.  

On 8 April 2010 the Equalities Act 2010 was passed. However, in order to allow time for people and organisations affected by the Equalities Act 2010 to prepare for the new law, only a few provisions of the Act came into force that day. It is expected that most of the main provisions of the Act will come into force in October 2010. However, this is not clear at present as there has been a change of government since the Act was passed. 

When the Equalities Act 2010 does come into force the Employment Equality (Sexual Orientation) Regulations 2003 will be revoked in their entirety.

What is meant by “sexual orientation”?

For the purpose of the Employment Equality (Sexual Orientation) Regulations 2003, “sexual orientation” means a sexual orientation towards persons of the same sex, persons of the opposite sex, or to both persons of the same sex and of the opposite sex. The Regulations, therefore, apply to heterosexuals, homosexuals and bisexuals.

What acts are prohibited by the Employment Equality (Sexual Orientation) Regulations 2003?

The Employment Equality (Sexual Orientation) Regulations 2003 prohibits the following acts:

Direct discrimination

Direct discrimination occurs where a person is treated less favourably than other persons on grounds of sexual orientation.

Indirect discrimination

Indirect discrimination occurs where a provision, criterion or practice, which is applied or would apply equally to persons not of the same sexual orientation, puts persons of a particular sexual orientation at a disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim.

Discrimination by victimisation

Victimisation occurs where a person receives less favourable treatment than others by reason of the fact that he has brought, or given evidence in, proceedings, made an allegation, or otherwise done anything under or by reference to the Employment Equality (Sexual Orientation) Regulations 2003.

Harassment on grounds of sexual orientation

Harassment occurs where a person is subjected to unwanted conduct on grounds of sexual orientation which has the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

When do the Employment Equality (Sexual Orientation) Regulations 2003 apply?

The Employment Equality (Sexual Orientation) Regulations 2003 apply to employment, vocational training and the administration of occupational pension schemes.  

The Regulations protect applicants for employment as well as employees. They protect contract workers, office-holders and those applying for such offices, constables, pupil and tenant barristers and those applying for pupillage or tenancy,  partners in firms and those applying for partnership, Crown servants and Parliamentary staff. 

The Regulations also apply to trade organisations, bodies conferring professional and trade qualifications, providers of vocational training, employment agencies and institutions of further and higher education.  

The Regulations also extend to acts of discrimination against or harassment of, a person where such acts arise out of, and are closely connected to, a relationship which has ended.

Are all discriminatory acts prohibited?

The Employment Equality (Sexual Orientation) Regulations 2003 provide for the following exceptions:

National security

The Regulations do not render unlawful any acts done for the purpose of safeguarding national security, if the doing of any such act was justified.

The helping of disadvantaged groups

The Regulations do not render unlawful any acts done in or in connection with affording persons of a particular sexual orientation opportunities or facilities which prevent or compensate for disadvantages linked to sexual orientation suffered by such persons.

Where sexual orientation is an occupational requirement

Exceptions are also provided where being of a particular sexual orientation is a genuine and determining occupational requirement for a post, or where the employer applies a requirement related to sexual orientation so as to comply with the doctrines of a religion, or because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

Benefits

Nothing in the Regulations renders unlawful anything which prevents or restricts access to a benefit by reference to martial status in the case of periods prior to the commencement of the Civil Partnerships Act 2004, or renders unlawful the conferring of a benefit on married persons and civil partners to the exclusion of all other persons.

What about acts of other employees?

Anything done by a person in the course of his employment is treated, by the Employment Equality (Sexual Orientation) Regulations 2003, as done by his employer as well as him. This is the case even where an act is done without the employer’s knowledge or approval. It is a defence, however, for an employer to prove that he took such steps as were reasonably practicable to prevent the employee from contravening the Regulations. 

A person who knowingly aids another person to do an act which is unlawful under the Regulations is treated as doing the unlawful act himself.

How are the Regulations enforced?

If a person has been discriminated against it is open to them to bring proceedings in an employment tribunal or in the County Court.