Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Legal Q&AEquality, diversity and inclusionSexual orientation discriminationSexual orientation

Sexual orientation

by Personnel Today 11 Sep 2006
by Personnel Today 11 Sep 2006

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

Avatar
Personnel Today

previous post
Taylor v OCS Group Limited, Court of Appeal, 31 May 2006
next post
Weekly dilemma…

You may also like

Don’t be gloomy over social mobility in the...

24 Jun 2022

Bias stopping STEM professionals returning after career break

23 Jun 2022

Black, Asian and LGBTQ+ workers ‘overlooked’ at work

20 Jun 2022

UK in urgent need of female tradespeople finds...

17 Jun 2022

CIPD Festival of Work: ‘Businesses will fail if...

16 Jun 2022

Construction blighted by skills shortage as sector steps...

16 Jun 2022

Google to pay $118m to settle equal pay...

15 Jun 2022

Diversity versus inclusion: Why the difference matters

13 Jun 2022

Authenticity at work: Is it really ‘all about...

9 Jun 2022

EU agrees on 40% quota for women on...

8 Jun 2022
  • NSPCC revamps its learning strategy with child wellbeing at its heart PROMOTED | The NSPCC’s mission is to prevent abuse and neglect...Read more
  • Diversity versus inclusion: Why the difference matters PROMOTED | It’s possible for an environment to be diverse, but not inclusive...Read more
  • Five steps for organisations across the globe to become more skills-driven PROMOTED | The shift in the world of work has been felt across the globe...Read more
  • The future of workforce development PROMOTED | Northumbria University and partners share insight...Read more
  • Strathclyde Business School expands its Degree Apprenticeship offer in England PROMOTED | The University of Strathclyde is expanding its programmes...Read more
  • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
  • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+