Michael Ferguson of Webster Dixon solicitors looks at the implications of the new sexual orientation legislation that comes into force on 1 December.

In 1999, a TUC survey found that 44% of lesbian, gay and bisexual trade union members considered that they had been discriminated against at work because of their sexual orientation. Although, in the UK we have legislation protecting employees against discrimination on the grounds of sex, race and disability, up until now there has been no specific legislation providing protection against discrimination on the grounds of sexual orientation. In addition, UK courts have consistently refused to interpret the existing provisions of the Sex Discrimination Act 1995 so as to cover discrimination on the grounds of sexual orientation.

The situation will change drastically on 1 December 2003 when the Employment Equality (Sexual Orientation) Regulations (“the Regulations”) come into force. The Regulations make it unlawful for employers to discriminate against or harass an employee on the ground of their sexual orientation. ‘Sexual orientation’ is defined as “a sexual orientation towards persons of the same sex, persons of the opposite sex, or persons of the same sex and of the opposite sex”.

Lesbian, gay and bisexual employees will therefore receive protection but the Regulations do not protect against discrimination relating to particular sexual practices: a man who has been discriminated against because he enjoys sado-masochism, for example, would not be protected.

The Regulations are similar to existing legislation in terms of prohibiting discriminatory treatment in:

Where an employee commits an act of discrimination or harassment an employer may be liable whether or not it was done with its knowledge or approval. The actual discriminator may also be personally liable. Discrimination after employment has ended is made unlawful where the discrimination arises out of, or is closely connected, with the past employment relationship.

There are four categories of discrimination under the Regulations: direct discrimination, harassment, indirect discrimination and victimisation. In the examples that follow X is the employer, and Y the employee.

Direct discrimination

Direct discrimination occurs if, on the ground of sexual orientation, X treats Y less favourably than he treats or would treat other persons. An example of direct discrimination would be where X refuses to appoint Y because he is gay. The less favourable treatment does not have to be on the ground of the victim’s sexual orientation. So, if Y is treated less favourably because X thinks that he is gay, this could amount to discrimination even if X is in fact mistaken.

Harassment

Harassment occurs where, on the ground of sexual orientation, X engages in unwanted conduct which has the purpose or effect of violating Y’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for Y.

Under the regulations as worded, if X intended on violating Y’s dignity or creating a hostile environment, then unlawful harassment will have occurred, regardless of its effect on Y. However, if that was not X’s purpose, then it is up to Y to prove that the treatment had the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. In addition, a tribunal must be satisfied that X’s conduct should reasonably be considered as having the effect that Y contends it did. This is designed to exclude protection of hypersensitive employees.

Indirect discrimination

Indirect discrimination will occur when X applies to Y a ‘provision, criterion or practice’ which X applies equally to persons of a different sexual orientation to Y, but which puts persons of the same sexual orientation as Y at a particular disadvantage when compared with others, and which actually puts Y at that disadvantage. There is a defence if X can show the provision, criterion or practice to be a ‘proportionate means of achieving a legitimate aim’.

Victimisation

Victimisation occurs where X treats Y less favourably than he treats or would treat other persons in the same circumstances, and does so by reason that Y has done or intends to do certain protected acts (such as complaining about being harassed because of his sexual orientation).

Enforcement

Complaints of discrimination must be made by way of an application to an employment tribunal, within three months of the act or acts complained of. A complainant will not have to prove his sexual orientation, nor disclose it in the course of tribunal proceedings. If unlawful discrimination has occurred, tribunals have power to make a declaration of discrimination, a recommendation as to action that the employer must take or order unlimited compensation.

Positive action

A potentially valuable and important aspect of the Regulations are the provisions made for ‘positive action’ by employers. ‘Positive action’ is permitted so far as its intention is to afford persons of a particular sexual orientation access to facilities for training for particular work or encouraging persons of that sexual orientation to take advantage of opportunities for doing particular work. Thus the positive action provisions may permit a job advertisement to be placed solely in magazines targeted at gay men and women. However, the positive action provisions in no way permit the use of quotas of gay men and women in a workforce or more favourable treatment of persons of a particular sexual orientation in terms of recruitment or promotion.

What actions is it necessary for employers to take?