Employers that ask staff whether they are gay, to comply with new laws
outlawing discrimination on the grounds of sexual orientation, risk breaching
human rights and privacy laws.
Many organisations are considering gay ‘audits’ to try to avoid compensation
claims for discrimination under the Employment Equality (Sexual Orientation)
Regulations, which come into force on 1 December.
Conciliation service Acas has released draft guidance which states
‘organisations may wish to consider whether to ask a question about sexual
orientation on their equal opportunities questionnaire’.
However, Hazel Oliver, employment law expert at law firm Lewis Silkin,
warned that collecting information on sexual orientation could breach the Human
Rights Act 1998. She added that such questions could also qualify as the
processing of sensitive personal data under the Data Protection Act 1998, which
requires consent from staff.
She said asking questions about sexual discrimination is contrary to the
spirit of the new laws, which don’t require staff to reveal their sexual
orientation, even in order to make a claim.
"Claims can be made for discriminatory treatment based on an
individual’s perceived sexual orientation, without them needing to reveal
whether that perception is correct," she added.
"The anonymous collection of information on a voluntary basis may be
justifiable if it is done to monitor the make-up of the workforce, and to check
for any under-representation of a particular group or statistical evidence of
Frank Howell, director of diversity at merchant bank JP Morgan, said the
firm asks its staff about their sexual orientation as part of its staff
satisfaction survey, and to help create a picture of the culture of the
He added that the survey was anonymous, and had the backing of JP Morgan’s
gay networking group, Pride.
By Michael Millar