Guidance on Employment Equality Sexual Orientation Regulations 2003
Summary
The Employment Equality (Sexual Orientation) Regulations 2003 came into force on 1 December 2003. These Regulations do not cover Northern Ireland where separate provisions are to be made (Reg 1). All members of the police service are covered by the Regulations (Reg 11).
The legislation makes it unlawful to discriminate against individuals on the grounds of sexual orientation with regard to employment including recruitment, terms and conditions, pay, promotion, transfers and dismissals. Sexual orientation is defined as being an orientation towards:
- persons of the same sex;
- persons of the opposite sex; or
- persons of the same and opposite sex.
The legislation does not extend to sexual practices (Reg 2).
Discrimination under the Regulations takes a number of forms:
- Direct discrimination occurs where a person is treated less favourably on the grounds of their perceived sexual orientation (whether or not such perception is correct). Discriminatory treatment need not relate to the individual's own sexual orientation and a person could in fact suffer discrimination by association (Reg 3).
- Indirect discrimination arises where a provision, criterion or practice is applied equally to all but which results in a disadvantage for a particular individual due to their sexual orientation and where such provision cannot be justified as amounting to a legitimate aim (Reg 3).
- Victimisation is defined as a person who is treated less favourably by virtue of something done by them in connection with the Regulations. This includes being treated less favourably following having in good faith brought proceedings, made an allegation, supported a person making a claim or having given evidence under the Regulations (Reg 4).
- Harassment takes place when an individual is subject to unwanted conduct on the grounds of sexual orientation affecting their dignity or where an individual is required to work in an intimidating, hostile, degrading, humiliating or offensive working environment (Reg 5).
There are two basic elements to prove, that is:
- that the situation (less favourable treatment) actually occurred; and
- this was because of the sexual orientation, or perceived sexual orientation, of the person.
Employment
The Regulations make it unlawful to discriminate against employees in a variety of circumstances from offering employment to dismissal (Reg 6).
Recruitment and selection processes must be fair, equitable and transparent and based on objective competencies over all stages of the process. Care should be taken in the wording of application forms to ensure that they are non-biased and only include necessary information. All personnel in the recruitment and selection process should be trained in the process and made aware of the legislation.
Positive action in certain circumstances is permitted. However, due to the difficulties in collecting information, there is not a requirement to provide evidence showing under representation The positive action should "prevent or compensate for disadvantages linked to sexual orientation" among the relevant group to whom positive action relates (Reg 30).
All employment references provided by a force should be fair and non-discriminatory whether informal or formal, even after the working relationship has ended (Reg 21). Failure to provide a reference on the grounds of sexual orientation could result in a claim at an Employment Tribunal.
Training can be refused by an employer to an individual, where the employment for which the training is to be undertaken is employment for which a particular sexual orientation is a Genuine Occupational Requirement (GOR). A GOR allows discrimination on the grounds of sexual orientation where being of a particular sexual orientation is a genuine and determining requirement for the employment in question (Reg 7). GOR's should be reviewed regularly for relevance to ensure validity of claim.
It is unlawful to discriminate in making contributions to a pension scheme as part of the terms and conditions of employment. However, it is not unlawful for the granting of benefits by reference to criteria based on marital status (Reg 25), eg if survivor benefits in an occupational pension scheme are only available to the widow(er) of the deceased employee.
Monitoring and Data Protection
Sexual orientation is not an obvious characteristic and many lesbians and gay men avoid disclosing their sexual orientation to a greater or lesser degree. There is no legal requirement to keep information on how staff groups are made up, but it is considered good practice. Staff should be informed that all information collected would be covered by the Data Protection Act. If sexual orientation is to be included in the monitoring process, confidentiality should be assured, individuals should be advised on how the information is intended to be used and that they are under no obligation to give such information.
Employer/Employee Liability
Each force is vicariously liable for acts of their employees, whether or not it knew of or approved them. It can however, defend itself by showing that it has taken reasonable steps to prevent such acts.
By their very nature sexual matters are private and confidential. Many may find it very difficult to make a complaint. Therefore, action should be taken to reassure staff of the confidentiality of procedures whilst taking responsibility to highlight the duty of care to protect employees from any potentially damaging behaviour. There should be an awareness of the sensitivities involved as sexual orientation is widely defined and it is easy to discriminate indirectly or for the organisation to be accused of harassment if people are not alerted to some of the pitfalls.
Each force is also liable for acts done on their behalf, i.e. staff acting as an agent of the organisation (Reg 22). However, individuals can be held personally responsible for acts of discrimination whether committed knowingly or unknowingly and could gain a criminal conviction (Harassment Act 1997).
Examples of indirect discrimination/harassment include:
- speculation on a persons sexual orientation because they support gay rights;
- a worker who becomes the subject of colleagues' jokes because they have a gay child;
- a heterosexual male referred to as the "office stud" or a heterosexual female referred to as a "man-eater" if they find such remarks offensive.
Burden of Proof
A person wishing to complain of discrimination or harassment in the workplace may take a case through an Employment Tribunal where the burden of proof to will fall to the employer to prove that a claim is invalid (Reg 28/29).
A complainant or potential complainant can serve a questionnaire on the respondent (the organisation) in order to obtain information relating to their complaint at tribunal. The aim of the questionnaire is to obtain information to help to establish key facts and enable the complaint to be presented in the most effective way. If the force does not
reply within 8 weeks, or if their reply is inadequate in the view of the tribunal, it may draw adverse inferences, which may assume that discrimination did take place (Reg 33).
Exceptions
Any act that is done to safeguard national security is not unlawful (Reg 28).
Preparing For The Legislation
Forces should focus on taking action now to ensure they are fully prepared for the changes to the law and in particular should consider:
- reviewing existing employment policies and practices to ensure that these do not discriminate against lesbians and gay employees;
- ensuring new employment policies and practices do not discriminate;
- training managers to provide them with an understanding of the legislation and the organisation's policies to enable them to carry out their roles and responsibilities effectively;
- ensuring that all staff are made aware of the organisation's policies through induction and briefing sessions, emphasising a zero tolerance approach to homophobic and other discriminatory activity;
- putting monitoring mechanisms into place to measure the effectiveness of policies. When doing so, consideration should be given to any particular issues that should be addressed.
Conclusion
The significance of the change to the law should not be underestimated. Testing challenges for HR specialists and managers lie ahead. Perhaps of greatest value to organisations will be communicating with employees to gain a greater understanding of the issues involved, in turn allowing for the establishment of effective preventative mechanisms.
