Legal Q&A: Sexual orientation equality

A number of issues have been raised by the recent stream of cases dealing with the Employment Equality (Sexual Orientation) Regulations. For example, in Martin v Parkam Foods (Personnel Today, 17 October 2006), the employer was criticised for failing to tackle homophobia effectively. In Ditton v CP Publishing (Personnel Today, 13 February 2007), a gay sales manager, who quit after only eight days with the company, won £124,000 in compensation. So what issues do HR departments need to be aware of?

Q One of my employees has complained of homophobic abuse by his colleagues. The fact is, he’s not even gay. Can I just tell him to stop complaining and ignore it?

A Not unless you really enjoy employment tribunals. The regulations protect against discrimination or harassment not only because of a person’s actual sexual orientation, but also their perceived sexual orientation, even if it is wrong. You should take a robust approach to any form of harassment in the workplace.

Q A bisexual employee has lodged a grievance about taunts he is being subjected to. Do the regulations apply to people who are bisexual?

A Yes. It is a common misconception that the regulations only protect against discrimination or harassment for those who are gay or lesbian. In fact, they protect everyone, whether their sexual orientation is gay, lesbian, bisexual or heterosexual.

It is also important to use the phrase ‘sexual orientation’ instead of ‘sexual preference’. The latter has been used to imply that being lesbian, gay or bisexual (LGB) is a choice that LGB people should ‘unchoose’ and it should, therefore, be avoided.

Similarly, the term ‘homosexual’ is considered by many to be derogatory and offensive, as it originated from a medical definition which classed same-sex attraction as a mental illness.

Q An employee says she is being harassed because her daughter and sister, who are not employees, are both lesbians. Can she rely on the regulations to bring a claim?

A Yes. A claim can be made ‘on grounds of sexual orientation’ and does not need to be based on the sexual orientation of the person complaining. It can be grounded in the fact they have received less favourable treatment because of the sexual orientation of someone with whom they associate.

Q A member of staff who has strongly held religious beliefs is being openly hostile in her refusal to work with a new colleague who is lesbian. How do I deal with this situation?

A This is a sensitive situation to manage, because one employee is likely to claim the protection of the Employment Equality (Sexual Orientation) Regulations 2003 while the other is likely to claim the protection of the Employment Equality (Religion or Belief) Regulations 2003.

While everyone is entitled to their own religious beliefs on the question of sexual orientation, they are not entitled to harass another person because of it.

You should reiterate that every member of your staff has the right to be treated with dignity and respect regardless of their sexual orientation, religion or belief, their sex, race, disability, or age.

Employees should be aware that a failure to treat colleagues professionally could lead to disciplinary action.

Q Do the regulations cover transgender workers?

A No, but the rights of transgender workers are set out in the Sex Discrimination (Gender Reassignment) Regulations 1999, which state that it is unlawful to discriminate against or harass anyone on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment.

But you should note the regulations only provide protection on the basis of sexual orientation.

They do not protect against discrimination relating to particular sexual practices or fetishes – sado-masochism, for example.

Q Should I include sexual orientation on my equal opportunities monitoring form?

A There is no legal obligation to include sexual orientation on monitoring forms, and views on whether or not to monitor sexual orientation has evolved over time.

Current best practice guidelines recommend including a question on sexual orientation in your equal opportunities monitoring forms, but that there should also be an option which states “I do not wish to answer this question”.

Guidance on the formulation of the question can be accessed via the Stonewall guide How to monitor sexual orientation in the workplace.




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