The EU’s Equal Treatment Framework Directive requires organisations to have
legislation in place to tackle sexual orientation discrimination by 2 December
The cases recently heard by the House
of Lords in relation to claims brought by lesbian and gay workers against their
employers captured the attention of the national press.
In Pearce v Governing Body of Mayfield Secondary School, the House of Lords
held that the purpose of the Sex Discrimination Act 1975 (SDA) was limited to
prohibiting discrimination on the grounds of gender, and did not extend to
discrimination on the grounds of sexual orientation. In McDonald v Ministry of
Defence, the Lords echoed this interpretation, stating that gender and sexual
orientation are distinct personal characteristics, and the SDA therefore could
not be used to protect gay rights.
This follows a string of cases by gay staff who have attempted to use the
SDA as protection from discrimination in the workplace. The legislatory
response over the past 20 years or so has been unsatisfactory, and consequently
homosexual employees have had to endure discriminatory practices and attitudes.
This is about to change. The catalyst is the EU Equal Treatment Framework
Directive, which requires member states to have legislation in place to tackle
discrimination against sexual orientation by 2 December this year.
The UK Government has published draft regulations – the Employment Equality
(Sexual Orientation) Regulations 2003 – to meet the Directive’s requirements.
These regulations are due to come into force on 1 December.
Sexual orientation is defined as a sexual orientation towards a person of
the same sex, the opposite sex or both sexes. The regulations’ objective is to
prevent direct or indirect discrimination based on a person’s actual or
perceived sexual orientation. Furthermore, the regulations prohibit
victimisation where a person is treated less favourably for bringing
proceedings under the regulations.
Most importantly, the regulations prohibit harassment, which is defined as
unwanted conduct on the grounds of sexual orientation with the purpose or
effect of violating the dignity of an individual, or creating an intimidating,
hostile or offensive environment. I believe a number of claims will be brought
in this area as gay staff try to challenge the homophobic culture which often
dominates the workplace.
The draft regulations have come under the scrutiny of the Joint Select
Committee on Statutory Instruments, which has centred around draft regulation
7. This allows employers to discriminate in terms of recruitment, promotion,
transfer, training and dismissal if they can establish that a genuine
occupational requirement (either to employ or not to employ a person on the
grounds of their sexual orientation) applies to the post. This is open to
interpretation and will undoubtedly be subject to a number of test cases.
Draft regulation 7 (3) is even more contentious. It allows an organised
religion to discriminate to comply with religious doctrine, or because of the
nature of the work and the context in which it will be undertaken, to avoid
conflicting with the strong religious convictions of a significant number of
the religion’s followers. The committee was concerned that this provision may
undermine the entire Directive. Further consultation will need to be undertaken
by the UK Government.
Many employers will be aware of the draft regulations’ provisions, and will
be reviewing their equal opportunities policies and benefits packages to ensure
they are compliant by December. Now is the time to ensure your equal
opportunities policies state that discrimination on the grounds of sexual
orientation will not be tolerated, and to make sure the policies are
implemented and staff receive relevant training.
By David Gibson, Solicitor, Dickinson Dees