In July 1967, the Sexual Offences Act 1967 partially decriminalised homosexuality in England and Wales. To mark the 50th anniversary of this seminal moment in lesbian, gay, bisexual and transgender (LGBT) rights, we highlight some of the key milestones for workplace protection against sexual orientation discrimination.
Sexual orientation discrimination: resources
Employment law manual: Sexual orientation discrimination
Sexual orientation: good practice
Task: Take steps to ensure workforce is inclusive of lesbian, gay and bisexual people
30 April 1996: This was an important day for transgender rights, when the European Court of Justice (ECJ) delivered its decision in P v S and Cornwall County Council.
The ECJ found that an employee who was about to undergo gender reassignment had been wrongfully dismissed.
It was the first piece of case law, anywhere in the world, to prevent discrimination in employment because someone is transgender.
17 February 1998: On this date, the ECJ gave its decision in Grant v South-West Trains Ltd.
The issue in this case was whether or not it was sexual orientation discrimination for the employer to limit travel concessions to “spouses and dependants”.
The female claimant argued that the rule discriminated against her because her female partner could not benefit from the concessions.
The case went to the ECJ, which decided that European protection against discrimination on the basis of sex did not extend to sexual orientation.
The perceived injustice of this decision was a factor in a ban on sexual orientation discrimination being included in the Equal Treatment Framework Directive.
27 November 2000: The EU Equal Treatment Framework Directive established a legal framework for equal treatment in employment and occupation.
Importantly, the Directive required EU member states to prohibit discrimination based on, among other things, sexual orientation.
Member states were given until 2 December 2003 to comply with the Equal Treatment Framework Directive.
1 December 2003: The first UK legislation dealing specifically with sexual orientation discrimination in the workplace was finally introduced.
The Employment Equality (Sexual Orientation) Regulations 2003 prohibited employers from committing direct and indirect discrimination, victimisation and harassment “on grounds of sexual orientation”.
5 December 2005: The Civil Partnership Act 2004 was passed, a hugely significant event for LGBT rights in the UK.
The Act gave same-sex couples the right to enter into civil partnerships, providing them with similar rights to married heterosexual couples.
The Act meant that employers that offered benefits to individuals dependent on marital status also had to offer the same benefits to individuals in civil partnerships.
30 April 2007: Surprisingly, legislation covering discrimination in the provision of goods and services because of sexual orientation was not introduced until 2007.
On 30 April 2007, the Equality Act (Sexual Orientation) Regulations 2007 finally came into force.
Employees’ religious beliefs can clash with the requirement for organisations not to discriminate against customers, meaning that these regulations can be relevant in employment disputes.
Discrimination in goods and services: case law
Lee v Ashers Baking Co Ltd and others (Northern Ireland Court of Appeal)
Bull and another v Hall and another (Supreme Court)
Black and another v Wilkinson (Court of Appeal)
19 December 2008: On this date, the Court of Appeal in English v Thomas Sanderson Blinds Ltd held that sexual orientation discrimination does cover homophobic abuse against a man who is not gay and who is not perceived to be gay.
This ruling represented an important widening of discrimination protection.
It recognised that homophobic taunts can be directed at heterosexual employees as a form of insult and that such taunts cannot be excused just because of the victim’s heterosexuality.
Although the Court of Appeal was considering the Employment Equality (Sexual Orientation) Regulations 2003, the Equality Act 2010 was drafted to make clear that protection against “perceptive discrimination” was covered.
15 December 2009: Many of the highest-profile employment cases involving sexual orientation discrimination have revolved around the clash between service providers’ religious beliefs and the right of service users not to be discriminated against on the basis of their sexual orientation.
The first such case to come to public attention saw a Christian registrar claiming religious discrimination after being disciplined for refusing to conduct civil partnership ceremonies between same-sex couples.
On 15 December 2009, her claim was ultimately rejected by the Court of Appeal in London Borough of Islington v Ladele and Liberty.
1 October 2010: Equality legislation was consolidated into one piece of legislation, the Equality Act 2010.
Protected characteristics under the Equality Act 2010
“Sexual orientation” was one of nine “protected characteristics” under the Equality Act 2010.
The Act prohibited employers from committing direct and indirect discrimination, victimisation and harassment because of someone’s sexual orientation.
Importantly, the Equality Act 2010 enshrines in legislation protection against:
- “associative discrimination”, where an individual is directly discriminated against or harassed for association with another individual who has a protected characteristic (for example, a friend who is gay); and
- “perceptive discrimination”, where an individual is directly discriminated against or harassed based on a perception that he or she has a particular protected characteristic (for example, a heterosexual employee being harassed by homophobic taunts).
13 March 2014: The Marriage (Same-Sex Couples) Act 2013 was passed on this day. The Act extended marriage to same-sex partners in England and Wales.
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The first same-sex marriages were able to take place from 29 March 2014.
The Act meant that employers that offered benefits to individuals in heterosexual marriages and civil partnerships also had to offer the same benefits to individuals in same-sex marriages.
