New Anti-Dicsrimination Laws
On 1st December 2003, the new Employment Equality (Sexual Orientation) Regulations 2003 came into force. The Government were required to introduce these new anti-discrimination rules as a result of the European Union Equal Treatment Directive.
The effect of the new Regulations is that gay, lesbian, bisexual and heterosexual men and women will be protected from discrimination on grounds of their sexual orientation. The Regulations provide protection against direct and indirect discrimination. Direct discrimination may include rejection for employment on grounds of sexuality as well as discrimination in the course of employment.
There is specific protection against harassment on grounds of sexual orientation. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. As with all anti-discrimination legislation, employers are generally liable for any discrimination or harassment carried out by their employees. This is an important issue for employers to consider. It is not unusual for gay and lesbian men and women to be subjected to unpleasantness at work whether that amounts to name-calling, offensive jokes, unwanted remarks or social exclusion. This kind of behaviour could now give rise to discrimination claims against the employer.
The only way of avoiding liability for discrimination is for the employer to show that they took reasonable steps to prevent employees from carrying out discrimination. This will involve showing that they have an equal opportunity policy which specifically covers discrimination against gay and lesbian employees. It will also involve demonstrating that this policy has been properly enforced. In practice, many equal opportunity policies do not specifically address the issue of sexual orientation and it is important that employers remedy this at the earliest opportunity. In any event, it might be sensible for employers to ensure that their employees are aware of the new law.
In addition to direct discrimination, employees are also protected against indirect discrimination on grounds of sexual orientation. This may include a situation where employee's partners benefit from some contractual entitlements including, for example, medical insurance for families. If these contractual benefits are limited to married partners, then it is arguable that gay and lesbian men and women with partners are suffering indirect discrimination since their partners will not benefit.
There are also similar Regulations to protect against discrimination on grounds of religion or belief and age.
October 2008
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 01793 527141 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.
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