Sexual orientation issues raised by forthcoming equality laws cannot be ignored

Any column inches that have not been filled by Celebrity Big Brother or Iraq have been occupied by the debate over the future of Catholic adoption agencies, which may not survive the introduction of equality legislation in April.

The Employment Equality (Sexual Orientation) Regulations 2003 contain exemptions which can be used by religious employers. However, the government has apparently decided that the legislation will not include exemptions for religious service providers.

This means that all adoption agencies, including those run by Catholic and other groups that have religious objections to homosexuality, will have to offer their services to gay couples in the same way as heterosexual couples, or face legal action.

When the regulations were introduced, there were fears that employees’ rights would conflict with rights under the regulations which protect employees’ religious beliefs (despite the exemptions in the legislation). However, most employers have not had to grapple with the philosophical issues that are troubling the Catholic Church, and there have not been any employment cases on this point. HR professionals, though, may still have something to teach service providers when they become subject to similar legislation.

Common themes

Common themes include investigating complaints properly and the consideration of what constitutes harassment and discrimination.

One issue for employers is the question of how proactive to be in eliminating homophobia. They should take action, even if staff are reluctant to complain (Brooks v Findlay Industries UK Limited). Why should a service provider be any different if users of the service are victimised for being homosexual?

Employers are expected to deal with complaints seriously. In Martin v Parkam Foods Limited, the tribunal noted that no attempt was made to challenge stereotypes and assumptions. The tribunal referred to “in-built” prejudice in its judgment.

While the distinction be­tween emphasising that discrimination has no place in the workplace and changing hearts and minds may be blurred, employers might feel uneasy about having to change attitudes (however wrong), rather than just policing those attitudes at work.

Key points

What actually constitutes sexual orientation discrimination or harassment may seem obvious, but remember that a single incident can be harassment – and the victim does not even have to be there when it happens.

The meaning of words actually used will also be relevant. In Ibrahim v T Butcher Mastics Limited, a heterosexual man was called a “poofter”. The argument that this referred to somebody not pulling his weight was accepted, and the claim of discrimination failed. Had a gay man been referred to as a poofter, the case for a discrimination claim would be better, although logic demands that if the word was also used in the sense of being work-shy, the gay employee might not have a claim, either.

Be aware that staff can be discriminated against on the basis of their perceived sexuality, regardless of their actual sexuality.

It will be interesting to see how far jurisprudence and practice from the employment field will be borrowed once equality legislation has wider application. At the moment, HR practitioners are ahead of the game.

Harassment and discrimination

  • If somebody is being harassed, you should not necessarily wait for them to complain before taking action.

  • Employers may need to challenge prejudices beyond just going through the motions of providing policies and training.

  • ‘Harmless’ banter can be offensive. Staff can sue if they are abused because of others’ perception of their sexual orientation – even if that perception is inaccurate.

  • Complaints of discrimination should never be treated lightly. Cases involving sex or sexual orientation discrimination are often covered in the press, so consider how this might affect your organisation’s reputation.

By Naomi Branston, associate in the Employment Group, Taylor Wessing

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