Sexual orientation

A recent study commissioned by the Law Society criticised City law firms for having homophobic undertones in their corporate cultures. Cited examples included trips to lap-dancing clubs, rugby matches and out-of-hours drinking sessions. The results should serve as a warning to all employers to review their employment practices, policies and procedures to ensure that they do not either directly or inadvertently give rise to discrimination claims.

Q Who could bring claims against employers that operate this type of practice?

A Employment practices such as those outlined above were described by the Law Society in its study as “heterosexual machismo”, and are therefore likely to disadvantage gay and lesbian staff, as well as women generally. So while employees could bring a potential claim under the Employment Equality (Sexual Orientation) Regulations 2003, women may also have a claim under the Sex Discrimination Act 1975.

Q What types of claim could workers bring?

A This would largely depend on how these practices operated within the workplace. For example, although many out-of-work socials or client entertainment functions may not be regarded as an express employment obligation, if an employee’s level of participation is used to measure their commitment, team spirit or determine career progression, this may amount to indirect discrimination.

Under the Sex Discrimination Act and the sexual orientation regulations, indirect discrimination will occur where an employer applies a “provision, criterion or practice” that is more likely to disadvantage members of a certain group, such as women or gay employees. The laws do not define the terms “provision, criterion or practice”, but aim to be wide enough to catch both contractual provisions and non-contractual policies.

Additionally, where such activities violate a person’s dignity or create an intimidating, hostile, degrading or humiliating work environment, employees may also have a claim for harassment under the discrimination legislation.

Q Is there a defence to these claims?

A Under the legislation, there is a defence of justification to a claim for indirect discrimination. This is where the employer can show that the application of that provision, criterion or practice was a “proportionate means of achieving a legitimate aim”. This is a limited defence, and has a fairly narrow application. The employer must show that the measure has a legitimate aim unrelated to any discrimination, that the measure is capable of achieving that aim and whether it is proportionate, having taken into account the possibility of achieving that aim by other means.

It is arguable whether or not an employer would be able to rely on this defence for this type of practice, as client entertaining and teambuilding could be achieved by other, non-discriminatory methods. However, harassment can never be justified, and once this is established there can be no defence to this type of discrimination.

Q Are there any other practices which are likely to disadvantage gay or lesbian staff?

A You should be aware of benefits that are dependent on marital status, which are more likely to disadvantage gay or lesbian employees, especially in light of the Civil Partnership Act 2004, which came into force on 5 December 2005. This Act amended the Sex Discrimination Act and the sexual orientation regulations by extending the provisions relating to discrimination on the grounds of marital status.

As a result, civil partners may not be discriminated against on grounds of their civil partner status in the same way as those who are married can’t be discriminated against. For example, any benefits such as private medical insurance provided by an employer to the spouses of its employees must now also be extended to employees’ civil partners.

Q What should employers do now?

A Review all employment documentation, including contracts, handbooks and policies and procedures. Ensure your equal opportunities policy covers discrimination on the grounds of sexual orientation. If appropriate, set up monitoring systems and ensure that any benefits dependent on marital status are extended to civil partners. Both employers and staff need to be mindful of their employment terms and conditions, and also of the general work atmosphere and culture.

Shaista Anjam, senior solicitor, Shakespeares

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