16 May 2006

Since December 2003 there has been an increase in legislation prohibiting sexual orientation discrimination in the workplace. The Employment Equality (Sexual Orientation) Regulations came into effect in December 2003, followed shortly by the Civil Partnership Act in December 2005. In the last two years the number of cases in this area have been steadily increasing. With the latest instalment, the Equality Act, coming into effect next year, now is a good time to dust down your equal opportunities policy and check that your procedures and training are effective.  

The 2003 Regulations prohibit sexual orientation discrimination in the areas of recruitment, training, the terms and conditions offered, and in appointments and dismissals. Since the coming into force of the Civil Partnership Act in December 2005, terms and conditions and documentation should be checked for compliance with the Act. Specifically, benefits afforded to employee’s partners, such as health care and pension payments to a surviving spouse, must be made available equally to civil partners. Application forms and other documentation should be checked and amended to apply equally to civil partnerships and marriage.

The Regulations prohibit sexual orientation harassment and victimisation. Statistics published by the Incomes Data Service indicate that harassment is the most common of the 410 sexual orientation discrimination claims filed since December 2004. The TUC and Stonewall surveyed gay and lesbian workers in 1999 and found that just under 50% of employees surveyed had been harassed at work due to their sexual orientation.  Consequently, it is in this area of harassment, where employers must be at their most vigilant. In 2004-2005, claimants in sexual orientation cases were awarded an average £10,205, fairly high when considering the figures for Sex discrimination are (an average of £8,787), disability discrimination (£10,157) and race discrimination (£27,041).

Harassment is defined as an act that violates a person’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment and can relate to anything from name calling and offensive jokes to a series of calculated acts.  Employers should take positive steps to reduce or eliminate harassment in the workplace or they can be held vicariously liable for their employee’s actions.  In order to avoid liability employers should have a clear discrimination or equal opportunities policy that runs alongside their disciplinary and grievance procedures. Existing policies should be checked for compliance with the 2003 Regulations. It should be noted that the existence of a policy on its own will not protect you from liability and it is essential that the procedures surrounding the policies are effective and communicated to line managers and staff. Training should be given where necessary and all complaints and grievances properly investigated. 

The Equality Act makes provision for the secretary of state to make further regulation in the area of sexual orientation discrimination. It is expected that future regulation will relate to the provision of goods, facilities, services, the use and disposal or premises and the exercise of public functions. The effect is likely to extend beyond the sphere of employment Law. Employers in the goods and service industries should start monitoring complaints and reviewing their working practices to ensure all reasonable steps are taken to prevent discrimination. The Act will launch the new commission for Equality and Human Rights (CEHR). Among the CEHR’s new powers, it can investigate bodies in the public and private sector and can require them to create action plans and provide undertakings prohibiting them from discriminating.