Features - Employment Rights

UK gets lesbian and gay rights at work at last.

The final countdown has begun for the implementation of an EU ruling that will make it illegal for employers to discriminate on the grounds of sexual orientation. The directive provides Lesbian, gay, bisexual and straight workers legal protection at work for the first time.
The move was welcomed by Alan Wardle, Stonewall’s director of parliamentary and public affairs, although he expressed concern that the directive contains exemptions that will allow religious groups to continue to discriminate against lesbians and gay men. “We think the way that it has been drafted is far too wide, and gives too much scope for spurious justifications for blatant discrimination. Will it mean a gardener in a Church school can’t keep his job?” An exemption for the non-extension of benefits available to “married partners only” has also proved controversial. But this may become redundant with the introduction of same-sex partnership recognition.
Wardle believes the religious exemption clause could be removed if its legality is challenged. A coalition of seven trade unions is currently trying to bring a judicial review of the religious and benefits’ clauses to the Court of Appeal.
The Employment Equality (Sexual Orientation) Regulations 2003 will come into force on December 1st — no cases may be brought for acts of discrimination which took place before this date. The Government has amended existing, employment legislation, such as The Employment Rights Act, to ensure they protect gay workers from being treated less favourably than their straight colleagues.

WHAT THE LAW WILL MEAN

• Employers cannot refuse to employ someone, or dismiss someone, because of their sexual orientation.
• Employers must act to protect employees from bullying or harassment because of their sexuality.
• Employers are liable for any discriminatory actions performed by an employee in the course of their employment, whether or not it was done with their knowledge — unless the employer can show that they had tried to prevent such actions.
• Employers cannot refuse someone access to training, transfer or promotion because of their sexual orientation.
• Employers cannot deny lesbian, gay or bisexual workers benefits, facilities and services (e.g., insurance schemes and travel concessions) that they offer to heterosexual employees.
• Employers cannot deny any benefits offered to a heterosexual partner to a same-sex partner — except for “marital status exemptions” (see below).
• Employers cannot give someone an unfair reference when they leave because of their sexual orientation.

WHO THE LAW WILL PROTECT

• The Regulations outlaw discrimination by employers, trade unions, qualifications bodies, providers of vocational training, employment agencies and institutions of further and higher education.
• They cover all employees and contract workers working at an establishment in Great Britain; holders of Government office and civil servants; police; barristers and advocates; partners in a firm, and the armed forces; anyone working on a ship registered in the UK, and on an aircraft or hover-craft registered in the UK and operated by a person whose principal place of business is the UK.
• A person’s “sexual orientation” is defined as being towards people of the same sex, the opposite sex, or both.
• Discrimination because of the sexual orientation of those that a person associates with will also be outlawed — as will discrimination because of an assumed sexual orientation.

EXCEPTIONS

• The Regulations do not extend to Northern Ireland.
• Employers may still deny a same-sex partner access to a benefit, such as an occupational pension survivor’s benefit, if they specify that it is restricted to married partners only.
• Employers may still discriminate when “being of a particular sexual orientation is a genuine and determining occupational requirement”.
• Employers may still discriminate if the employment is “for purposes of an organised religion” and a particular sexual orientation is required “so as to comply with the doctrines of the religion”, or “to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers”.
• There is a general exception for “an act done for the purpose of safeguarding national security, if the doing of the act was justified by that purpose”.

EXCEPTIONS FOR TAKING POSITIVE ACTION

• It will be legal for employers to take steps to encourage persons of a particular sexual orientation to apply for a particular job or training if this compensates for disadvantages suffered by persons of that sexual orientation.

ENFORCEMENT

• Complaints under the new Regulations should be submitted to an employment tribunal within three months.
• Cases involving education and training will be heard by county courts, and must be submitted within six months.
• The Complainant should submit a questionnaire (see below) to their employer — the tribunal may draw appropriate inferences from a failure to respond.
• The burden of proof lies with the employer, who has to show there has not been discrimination and that they have not broken the law.

The full text of the Regulations is available online at
www.hmso.gov.uk/si/si2003/20031661.htm. A copy of a Complainant’s questionnaire is also available there.

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