Sexual Orientation Regulations

Q Can our company be held responsible if one of our employees is subjected to homophobic abuse in the workplace?

A The Employment Equality (Sexual Orientation) Regulations 2003 prevent discrimination on the grounds of a person’s actual or perceived sexual orientation.

Recent case law has highlighted that an employer can be found liable under these regulations if an employee complains to an employment tribunal that they have been subjected to homophobic abuse in the workplace – treatment which lays the employer open to a claim of constructive dismissal and/or harassment.

Even if a comment of this nature is made without the intention of the subject hearing it, or if the subject hears of the comments indirectly, the employer can still be found liable.

Q Will the regulations apply to my company’s employees?

A The regulations apply to all employers and they apply throughout the employment relationship – from the recruitment process to dismissal and sometimes even after employment.

Q What should I do if an employee complains that such comments have been made?

A All allegations about language of this type should be investigated as soon as they come to your attention. Instances of this behaviour reflect a breakdown in communication between the employees in question, and so a proper investigation can address the problem at this point rather than allowing matters to get out of hand.

The accused employee must have the chance to apologise and any exceptional circumstances such as personal trauma (particularly when the accused employee has no previous history of behaviour of this kind) should be taken into account. If appropriate, you should take disciplinary action in line with the relevant policies.

It must be made clear to your employees that the procedures you have in place will be rigorously enforced. Employees should feel confident that their complaint will be treated seriously, that managers will deal with the cause of the problem, and that the process will be confidential.
If resources allow, it is recommended that organisations have a named individual who is trained and specifically responsible for dealing with employment equality issues and complaints.

Q I work in a company where ‘off the cuff’ remarks between workers are often shared. I believe they are considered as part of the ‘banter’. How can I manage such behaviour?

A Prevention is always better than cure. It is important to build a culture of inclusion within your organisation. Employers must not assume all of their employees are heterosexual and policies and procedures should be checked to make sure that they do not indirectly exclude some staff.
Your employees must be made aware that any form of comment of this nature is unacceptable, whether it is made within earshot of the subject or not.

The simplest way of achieving this is by making sure your equal opportunities policy and the training that you give your staff are as robust as possible. This policy and training should include some notification of the impact that the regulations have for employees and employers. They should focus in part on the use of inappropriate language, including homophobic comments and jokes, which may have been intended as ‘banter’ but which have the effect of being degrading or distressing.

If it has been some time since your employees were advised to look at or were taken through your organisation’s equal opportunities policy, a refreshment seminar/workshop may well be in order. You should also consider addressing the matter with managers who are responsible for monitoring the work of their team and for addressing problems when they arise.

This will assist in reducing the likelihood of discrimination, harassment and victimisation occurring, and may help to limit liability if a complaint is made.

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