Legal Q&A: Sexual orientation

By Michael Bradshaw, associate, employment and pensions
unit, Charles Russell

Q An employee has complained that he is being verbally abused by other
staff on the basis that his son is gay. Is this covered by the new Equality
Regulations?

A The regulations came into force on 1 December 2003. They provide
protection in the workplace against all forms of discrimination based on sexual
orientation. They also expressly cover harassment, which also covers verbal
abuse. In this scenario, the worker is being harassed due to the sexual orientation
of a member of his family, and not on the basis of his own sexual orientation.

However, this is covered under the new regulations, which protect against
discrimination on the grounds of sexual orientation, whether it is the
orientation of the victim, or in this case, someone else.

Q An employee has stated that we are discriminating on the grounds of
sexual orientation because our insurance benefits only extend to spouses. Do we
have to change the availability of these benefits?

A. The regulations expressly exclude the provision of benefits that
are dependent on marital status. Without this exclusion, it would amount to
unlawful discrimination.

Any benefits available to opposite sex partners that do not require them to
be married are not covered by the exception, and such provisions would be
discriminatory.

In the Queen’s Speech, the Government announced its intention to introduce
legislation for ‘civil partnerships’, which would give same sex couples rights
and obligations akin to those of married couples. This is expected to mean the
exception will be removed at some stage in the future, although there is no
timetable for this yet.

Q An employee has asked to take leave and change her working hours as she
and her female partner will be adopting a child. Are these rights available to
same sex couples, and can you ask for evidence of a relationship?

A Rights for same sex couples were included within the provisions on
paternity and adoption leave, as well as flexible working, all of which were introduced
from 6 April 2003.

These rights extend to ‘partners’, which expressly covers persons of the
same sex and those of different sexes, and who live with the mother or adopter
in an enduring family relationship, but are not a relative. This partner must
have the main responsibility (together with the mother or main adopter) for the
upbringing of the child.

Employers are not allowed to seek any evidence of a relationship or whether
the worker is in fact going to have responsibility for the child. The rights
are based on self-certification on the employee’s part and employers should not
investigate or enquire further about the private lives of their staff.

Q Can an employer expressly hire people of a particular orientation?

A The regulations do provide for recruitment based on sexual
orientation, but only where it can be shown to be a genuine occupational
requirement for the job position.

The particular sexual orientation must be a specific requirement of the job,
and not just a preference.

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