New equality law: Sexual orientation
Section four of the Personnel Today Management Resources one stop guide to new equality laws. Other sections.
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Understand what new sexual orientation equality regulations mean Understand other relevant sexual orientation equality legislation Learn about key legal cases |
The premise
Employers cannot discriminate against an employee or potential employee because they are, or are perceived to be, gay, lesbian, bisexual or heterosexual, or because they are associated with someone of a particular sexual orientation. This applies to the following situations:
Contract and agency workers are also protected against discrimination:
The law
The Employment Equality (Sexual Orientation) Regulations 2003, which took effect in December 2003.
What this means:
People are now protected from discrimination in the workplace and in vocational training on the basis of sexual orientation with three key exceptions:
An organisation that wishes to take the latter exemption must be able to:
Liability: Employers are liable for their own acts of discrimination against employees or job applicants, for any discriminatory acts committed by their employees while at work - unless the employer can prove it took reasonable steps to prevent such behaviour - and for acts by third-party agents when committed with the employer's express or implied authority.
The definitions
Discrimination
Other relevant legislation
European Union Employment Framework Directive 2000/78/EC: Establishes a general framework for equal treatment in employment by outlawing discrimination on the basis of sexual orientation, religion or belief, disability and age in employment and vocational training.
Human Rights Act 1998: Gives 'further effect' to the rights and freedoms guaranteed to all under the European Convention on Human Rights and Fundamental Freedoms created in Rome in November 1950. It does not create any new statutory or common law rights for individuals.
It imposes a duty on tribunals and courts, when determining a question that has arisen in connection with a Convention right, to take account of any judgment, decision, declaration or opinion of the European Commission and Court of Human Rights that may be relevant to the proceedings in which that question has arisen. It also makes it unlawful to public authorities, government departments and local authorities, for instance, to act in a way that is incompatible with a Convention right.
Most relevant to sexual orientation discrimination legislation are Articles 8, the right to respect for private and family life, and 14, which prohibits discrimination on any grounds such as disability, race, religious belief, sexual orientation, etc. Other provisions with impact on employment are:
The Sex Discrimination (Gender Reassignment) Regulations 1999: Among other provisions, it protects transgender people from discrimination.
Key cases
LUSTIG-PREAN & BECKETT V UK (1999), SMITH &GRADY V UK (1999), PERKIN &R V UK (2002), AND BECK, COPP & BAZELEY V UK (2002)
All applicants had been discharged from the armed forces after military authorities conducted investigations which confirmed the applicants were homosexuals. In this series of cases, the European Court of Human Rights declared that discharging lesbians, gay men and bisexuals from the military because of their sexuality violated their right to a private life, guaranteed by Article 8 of the European Convention on Human Rights.
MACDONALD V MINISTRY OF DEFENCE, PEARCE V GOVERNING BODY OF MAYFAIR SCHOOL (BOTH JUNE 2003)
Macdonald was dismissed from the military because he was gay, which followed the military's policy at the time. Pearce had been harassed by students at the school where she taught because she was a lesbian. Both Macdonald and Pearce had filed claims that they had been subjected to sex discrimination.
In decisions announced on the same day, the House of Lords decided that neither had been discriminated against because of their sex, meaning gender, because members of the opposite sexes would have been treated the same under similar conditions. These cases occurred before the legislation banning sexual orientation discrimination in employment went into force, so sexual orientation had no protection under the law.
IBRAHIM V T BUTCHER MASTICS LIMITED (2004)
Ibrahim resigned from T Butcher Mastics after he had called in sick one day, to the evident irritation of Tommy Butcher, the managing director's son. Ibrahim complained that Butcher had called him a 'poofter', a word sometimes used as a disparaging reference to homosexuals, although Butcher knew that Ibrahim had a girlfriend and understood him to be heterosexual. An employment tribunal dismissed Ibrahim's complaint of discrimination on the basis of sexual orientation.
Key point: Calling someone a poofter may not be sexual orientation discrimination where it is not said in relation to the person's sexual orientation.
PETERSON V HEWLETT-PACKARD (US, 2004)
Peterson, a long-time Hewlett-Packard (HP) employee who described himself as a devout Christian, posted Biblical verses at his worksite that appeared to condemn homosexuality, in response to a company diversity campaign. HP removed Peterson's posters because they violated the company's harassment policy. He protested, and announced he would continue to replace the Biblical verse postings unless the company removed posters welcoming gay recruits. The company refused. Ultimately, Peterson was dismissed for insubordination. He claimed that he had been dismissed because of his religious beliefs. The Court of Appeals found that HP managers had not requested that he change his beliefs, but simply that he treat colleagues with respect. The court upheld HP's actions.
Key point: Emphasising policies that require all employees to be treated with respect is a positive course of action that could serve UK employers well.
The future
Proposals for civil partnership legislation, which would allow legal recognition for same-sex couples, have been made for England and Wales, Scotland and Northern Ireland. If eventually passed, the legislation would likely open the door for same-sex partners to enjoy joint income-related benefits, joint state pension rights, the right to claim survivor pension and eligibility for bereavement benefits.
Creating a discrimination-free zone
Recruitment
Keep a record of each stage of the recruitment process so that candidates and anyone else involved can see that you have dealt with all applicants fairly.
Review job application forms to ensure they do not ask potentially discriminatory questions, such as marital status.
Check that job descriptions/specifications only contain requirements that are clearly related to the duties. Focus on what the job is to accomplish.
Include information in your job advertisements and company literature to make it clear your company welcomes a diverse workforce. Specify if you have an equal opportunities policy.
You may want to place job advertisements in publications aimed specifically at gay, lesbian and bisexual audiences to diversify your workforce, but keep in mind that advertisement campaigns cannot be seen to discriminate against potential heterosexual applicants.
Remember that laws relating to gay men have changed significantly over time. It is possible that some applicants may have received a criminal conviction years ago for a matter that is no longer against the law, such as consensual gay sex. This probably won't have any bearing on the individual's skills and suitably for the job or training advertised.
The interview
Focus on the skills and abilities required to do the job. Avoid questions on personal issues such as marital status, number of children and arrangements for their care, the candidate's sexual orientation and social life.
Train interviewers and recruiters to understand the selection criteria and apply them consistently.
Make sure recruiters do not make assumptions based on stereotypes and prejudices about particular groups. It is also important for them to understand that prejudices may have limited a candidate's opportunities to develop in other jobs.
Set up a system so that staff members know what to do if they think a recruiter or interviewer has made a prejudiced comment, or a decision based on sexual orientation rather than a candidate's ability to do the job.
Positive action
If employers believe that people of a particular sexual orientation are underrepresented in the company workforce, certain steps can be taken to redress the effects of any previous inequality of opportunity. Some measures might include:
Retention
Opportunities for training, development and career progression should be widely communicated, and be available to all employees on a fair and equal basis.
When staff members apply for an internal transfer, informal and verbal references between managers, supervisors and other staff should be fair and non-discriminatory.
Don't assume everyone is heterosexual or married. When a social event is planned and employees' partners are invited, be careful with publicity or invitations to the event to ensure unmarried employees and those in same-sex relationships are included.
Review your benefits policies, and work towards providing the same benefits to employees with same-sex partners as to those in heterosexual relationships. This might include bereavement leave, parental leave and adoptive parental leave, relocation allowances, carer's leave and travel benefits. It may also include discounts on company products or services and health insurance. At this time, some life insurance providers won't cover same-sex couples, and some pension plans will only pay dependents' benefits to spouses or unmarried, heterosexual partners.
Make communications about benefits packages inclusive, using words such as 'partners' or 'nominees' instead of husband, wife or spouse.
Good practice: Some companies choose benefits suppliers, such as insurance companies, that are committed to equal treatment of same-sex partners.
Harassment and bullying
Not only is harassment demotivating and hurtful, it is unlawful. It can take many forms, from being ignored and excluded to taunting and physical abuse, or being 'outed' as gay, and sometimes even violence.
Train your workforce on your company equality policy from the point of induction, and offer regular training updates. If a complaint is made, such training will not only help reduce instances of discrimination taking place, but may help limit liability.
Equality training should emphasise that homophobic comments, jokes and offensive slang terms and other potentially degrading language will not be tolerated - even if there is no intent to offend anyone.
Staff should be aware that if they harass or bully colleagues, they could be personally liable and may have to pay compensation. Such liability is separate from, and in addition to, any compensation that the organisation is ordered to pay in the event of a complaint.
Make it easy for people to report harassment or bullying. Your workforce needs to know what steps they could take if they feel they have been discriminated against, harassed or victimised. They should feel confident that their complaint will be treated seriously and dealt with quickly and effectively. They may want their complaint treated in confidence.
Develop a process for dealing with harassment and bullying, and train managers and supervisors in monitoring, reviewing and disciplinary options.
Ensure you follow a consistent approach to tackling discrimination in the workplace. It is not enough to simply have procedures in place - you must work at enforcing them.
Monitoring
Monitoring can be a helpful tool in determining the success of diversity efforts. However, because sexual orientation is a private matter, monitoring for it is a sensitive issue for employers, workers and within the gay and lesbian communities.
Many gay, lesbian and bisexual workers and job applicants will not feel safe revealing their sexuality. Because of the sensitivity surrounding this issue, it might be advisable to obtain specialist assistance with monitoring methods and formats from such organisations as Acas, Stonewall or trade unions.
Questions on equality and diversity issues such as sexual orientation should be separated from job applications so that such information is not linked to individual candidates, and to avoid any confusion that the information is relevant to the recruitment process.
Monitoring forms, if used, should avoid the suggestion that being gay, lesbian or bisexual is different from the norm.
Good practice: Addressing the question of monitoring on an equal opportunities form encourages participation as a way of finding out how the company might better gauge the needs of all of its employees. However, always leave respondents the option of declining to answer.
Protect your employees' confidentiality
Monitor the number and type of discrimination or harassment complaints and disciplinary and grievance procedures as a way of alerting management to homophobic attitudes.
Source: Sexual Orientation and the Workplace, Acas, and The Employment Equality (Sexual Orientation) Regulations, Stonewall.
Barclays wanted to ensure that its employees would not be placed at a disadvantage because of either marital status or sexual orientation. In staff manuals, references to 'spouse' were removed and replaced with the word 'partner'. Benefits that previously applied to a Barclays' employee spouse were then also offered to unmarried Barclays employees' partners.
When Barclays' employees were transferred overseas, all allowances for couples applied only to husbands and wives, and not for unmarried partners who accompanied employees abroad, explains Steve Noke, equality and diversity manager, Barclays' Group central functions. "That has been changed, so partners, same sex or otherwise, now get the same benefits as a married couple."
Adoption-related benefits that were previously the exclusive domain of Barclays' female employees now apply to men, too. Male employees who want to adopt a child -either a single man or as part of a same-sex couple - are now eligible for the same benefits as female employees who adopt, Noke says.
Pensions remain a thorny area for same-sex couples because of many schemes' restrictions on paying only married partners or heterosexual cohabitees. However, Barclays has taken steps to remodel this by allowing employees to nominate recipients for dependents' benefits, Noke says.
The company has launched an initiative to help eliminate discrimination on the basis of sexual orientation for its customers. Its life insurance policies were issued through a third-party supplier, which charged gay men a premium - although granting the policy depended on the results of an HIV test. "Even if the tests were negative, there was still a premium and a hike because they were considered to be from a high-risk background," Noke says.
However, customers who declared themselves to be in monogamous relationships were assessed on standard rates. "Most customers weren't aware that they could probably do that," Noke says. "And we did have some negative comments about this policy."
After about a year of discussions between Barclays and the third-party supplier, the provider retracted the policy, and gay men are now charged standard rates.
Taking a proactive approach to preventing and eliminating harassment from its ranks, Barclays distributed a booklet to employees that outlines grievance procedures in the event of harassment occurring. Contact details are provided for people who want further information.
Externally, the company has been happy to let the outside world know of its support for its gay, lesbian, bisexual and transgender (GLBT) workforce. Barclays' Spectrum network of GLBT employees has participated in Manchester Pride. Barclaycard has sponsored the dance tent at Brighton Pride. The company is also a diversity champion with the gay, lesbian and bisexual advocacy organisation Stonewall, and Barclays' community work has included projects with Friends of Lesbians and Gays (FLAG).
One such project with FLAG has involved Barclays' sponsorship of translating booklets, from English into Hindu and Urdu, aimed at helping families cope if they find out their children or siblings are a member of a sexual orientation minority. The project also includes recording the booklet on to tape in those languages because of some natives' limited literacy.
"We try to keep ahead of what's coming up," says Noke.
Niccola
Swan, Barclays' director of equality and diversity, says: "Barclays has
deliberately put sexual orientation at the heart of its diversity strategy, on
an equal footing with issues such as gender, race, age and disability. It is
remarkable to see what this can do for an organisation in terms of openness and
a renewed sense of pride in being part of a company where each and every
individual counts."
Sexual orientation
A Labour Research Department survey of 132 union branches found that half said their employer had taken some steps to address discrimination against lesbian, gay and bisexual workers.
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ACTION |
% ACTION TAKEN* |
% INTEND TO TAKE ACTION* |
% TOTAL* |
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A review of the equal opportunities policy |
83% |
9% |
92% |
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A review of other policies such as bullying or harassment |
68% |
12% |
80% |
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A review of recruitment and selection procedures |
59% |
17% |
76% |
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A review of promotion policies and training opportunities |
52% |
15% |
67% |
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Provision of equality awareness training that includes sexual orientation |
45% |
14% |
59% |
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An audit of employment conditions and benefits to ensure equal treatment for lesbian and gay employees and partners |
30% |
15% |
45% |
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Provision of information about the new rights covering lesbian, gay and bisexual employees |
26% |
21% |
47% |
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Employee monitoring that includes sexual orientation |
18% |
6% |
24% |
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* All percentages are out of those who said the employer had taken, or intended to take, steps to address the issue of discrimination against lesbian, gay and bisexual workers. |
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Source: Lesbian and gay workers' rights - an LRD guide, Labour Research Department |
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Section
1: Introduction |
