Public and Commercial Services Union

The law

Rights for lesbian, gay and bisexual workers

From December 2003, lesbian, gay and bisexual workers acquired new rights at work.

The Employment Equality (Sexual Orientation) Regulations 2003 outlaw discrimination on the grounds of sexual orientation.

The full text of the regulations can be found on the OPSI website.

Scope of Legal Protection

The Regulations apply to all aspects of employment, including training.

Contract workers are also covered by the legislation.

Employers are liable for acts of discrimination carried out by their employees.

Generally, all forms of direct and indirect discrimination are unlawful - however there are a few narrowly defined exceptions.

Acts of victimisation and harassment is also covered by the legislation. Protection is also extended to cover post employment relationships where the termination of employment was connected with the end of an employment relationship.

The protection from discrimination does not extend to services or the provision of goods.

Meaning of sexual orientation

The Regulations define sexual orientation as people having a sexual preference towards:

• persons of the same sex
• persons of the opposite sex or
• persons of the same sex and of the opposite sex

Direct Discrimination

Direct discrimination occurs where a person (A) discriminates against another person (B) if on the grounds of sexual orientation, (A) treats (B) less favourably than he would treat other persons.

Direct discrimination cannot be justified by an employer under these Regulations unless the case falls under the narrowly defined genuine occupational requirements.

Meaning of the phrase "on the grounds of sexual orientation"

In the context of direct and indirect discrimination "on the grounds of sexual orientation" includes discrimination based on (A's) perception of (B's) sexual orientation.

This means that people will be able to bring a claim even if the discrimination was based on incorrect assumptions about a person's sexual orientation and the victim has suffered because of assumptions made about their sexual orientation.

Indirect Discrimination

Indirect discrimination takes place when(A) applies to(B) a provision, criterion or practice which when applied or would be applied equally to persons not of the same sexual orientation as (B) would:

• put or would put persons of the same sexual orientation as (B) at a particular disadvantage when compared with other persons
• puts (b) at that disadvantage

and cannot show, the practice, provision, or criterion as a proportionate means of achieving a legitimate aim.

Harassment

Harassment occurs when, on the grounds of sexual orientation (A) subjects another person (B) to unwanted conduct which has the purpose or effect of:

• Violating (B's) dignity or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for (B)

When considering complaints of harassment, tribunals will consider all the circumstances relating to the complaint, including the perception of (B) the victim.

Victimisation

An act of victimisation occurs if a person is treated less favourably than others because he or she has done one of the following things:

• Commenced proceedings against the discriminator
• Given evidence or information in connection with proceedings brought by any person against the discriminator
• Alleged that the discriminator or any other person has committed an act which would amount to victimisation under the Regulations.

Post employment discrimination

An employee has a right to bring an action of discrimination under the regulations if the reason for terminating the employment relationship was closely connected to discrimination on the grounds of sexuality.

Enforcement

As with other equality strands, enforcement is through Employment Tribunals. The same time limits apply, so complaints must be brought within three months of the last act of discrimination.

Burden of proof

The onus of the burden of proof rests with the employer to prove that s/he has not discriminated against an applicant.

Employer and employee liability

PCS survey

A survey of PCS members found that despite the existence of equal opportunity and diversity policies, cultures exist whereby lesbian, gay and bisexual people are routinely subjected to harassment and bullying because of their sexuality.

The survey showed that lesbian, gay and bisexual people were subjected to a variety of discriminatory treatment including:

• name calling
• jokes
• use of derogatory language
• malicious gossip
• malicious emails
• biblical condemnation.

Behaviour as outlined above is unlawful under the Sexual Orientation Regulations 2003.

Employers must act

Employers are liable for acts of bullying or harassment carried out by their employees.

In order to avoid liability, employers must act to protection employees against harassment and bullying encountered on the grounds of sexuality.

The perception of the person suffering the harassment and or bullying is important in identifying acts of discrimination.

Good employers should audit official policies as well as look at workplace culture to ascertain whether policies are indirectly discriminatory or whether existing cultures in the workplace need to be addressed to prevent homophobic harassment.

Should a complaint of bullying or harassment be made and a successful complaint is brought at tribunal level, apart from the named employer, individuals may well find themselves personally liable for acts of bullying and harassment amounting to discrimination.

Where organisations have trained employees in equal opportunities and anti discrimination/diversity policies, if the employer can show that reasonable steps were taken to protect the victim (B) from harassment, the employer may be able to absolve itself from liability, leaving the perpetrator of the harassment fully liable for the all costs and awards made in relation to the complaint.

Exceptions to the regulations

Genuine occupational requirement and employment for the purposes of organised religion

The Regulations permit an employer, when recruiting for a post, to treat job applicants differently on the grounds of sexual orientation if possessing a particular sexual orientation is a genuine occupational requirement for a particular post or where the employment is for the "purposes of an organised religion"

Genuine occupational requirement

The Genuine Occupational Requirement exception already exists in anti discrimination law relating to gender, race and disability.

The provision permits positive discrimination in circumstances when being of a certain sexual orientation is a requirement to a particular post.

Employment for the purposes of an organised religion Regulation 7(3) permits employers to discriminate on the grounds of sexual orientation where the employment is for the "purposes of an organised religion".

The provisions of regulation 7(3) of this new law, permits discrimination where an employer applies, a practice, provision or criterion where having regard to the nature of the employment or the context in which the employment is carried out the employer requires a specific sexual orientation so as to comply with the doctrines of a religion or to avoid conflicting with strongly held religious convictions of a significant number of the religion's followers and either:

• the person to whom that requirement is applied does not meet the practice, provision or criterion or
• the employer is not satisfied and in all the circumstances it is reasonable for the employer not to be satisfied that the applicant has met the provision, criterion or practice.

As the civil service is not organised for the purposes of religion, the exceptions do not apply to the civil service.

The effect of regulation 7(3) and Regulation 25 Regulation 7(3)

In terms of applicants and existing job holders, regulation 7(3) will be the clause that will prove most problematic for lesbian, gay and bisexual people. The wording of regulation 7(3) is ambiguous: "… to avoid conflicting with strongly held religious convictions of a significant number of the religion's followers".

PCS has grave reservations about this provision as there is no certainty as to what the law means.

How will religions go about proving that a particular sexuality conflicts with the religious convictions of a significant number of the religion's followers?

What amounts to a significant number?

How will numbers be verified?

These are just a few queries PCS has raised in the process of consultation and they continue to be a cause of concern.

Another element of subjectivity PCS has queried is the element of 7(3) where the employer is allowed to discriminate, is not satisfied a particular person meets the sexuality requirement.

The regulation refers to the employer having to have come to his/her decision in a reasonable manner - but there is no guidance as to what sort of things the employer will be taking into account.

This begs the question as to what sort of questions employers will be able to ask during the recruitment process.

Moreover what happens if employers don't believe what they are told?

In response to queries raised during the consultation period all the government has said that it is the intention that the exception provisions will be narrowly applied.

The Government's response is unsatisfactory as in the event of any disputes it will be up to individuals to take on employers and even if they do win there is no guarantee that they will be appointed to a particular post or be reinstated if they are denied promotion or sacked.

In addition, if individuals have to take employers to court over disputed sexuality, the working relationship will have already been damaged.

Regulation 25

The provisions of this clause permits discrimination on the grounds of marital status.

Advice from Counsel circulated by the TUC suggests that the government by introducing this clause as well as regulation 7(3) has acted beyond its legal parameters in terms of how the European directive was interpreted in order to include clause 25 into the Employment (Sexual Orientation) Regulations 2003.