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Employment Equality (Sexual Orientation) Regulations 2003

On 1 December 2003, the Employment Equality (Sexual Orientation) Regulations 2003, which ban discrimination on the grounds of sexual orientation in employment, came into force.

	The Employment Equality (Sexual Orientation) Regulations are designed to outlaw this kind of unacceptable treatment. They cover employment and training across England, Scotland and Wales, whatever the size of the organisation, whether in the public or the private sector. They represent a significant addition to our domestic equality legislation and they will make a practical difference to the lives of millions of people. Gerry Sutcliffe, DTI Employment Relations Minister, June 2003

The Employment Equality (Sexual Orientation) Regulations 2003 are a result of the UK’s implementation of the 2000 EU Employment Framework Directive requiring member states of the European Union to ban sexual orientation discrimination in employment by the end of 2003.

It all started in 1997, when the heads of all EU member states agreed on a new Treaty of Amsterdam, which specifically allowed EU institutions to combat sexual orientation discrimination. Article 13 of the new Treaty of Amsterdam states:

Without prejudice to the other provisions of this Treaty and with the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability or sexual orientation.

In 2000, as a result of a new power to combat sexual orientation discrimination, a new Directive was agreed requiring all EU member states to ban sexual orientation discrimination, as well as other forms of discrimination listed in Article 13, in employment by the end of 2003. The UK government conducted a series of public consultation exercises with all organisations and individuals working and interested in employment equality and presented its draft Regulations to parliament who agreed to the Regulations in June 2003.

Michael Cashman, one of Stonewall’s founders and now a MEP (as well as a member of the European Parliament's Intergroup on Gay and Lesbian Rights), played a key part along with Stonewall and other European lesbian, gay and bisexual groups in getting the Directive through.


What protection is available to lesbian, gay and bisexual workers since December 2003?

The legislation bans discrimination on the grounds of sexual orientation in employment and vocational training. This legislation specifically bans direct and indirect discrimination, harassment and victimisation because of sexual orientation.

According to the new Regulations, treating people less favourably than others on grounds of sexual orientation constitutes direct discrimination.

Indirect discrimination means applying a provision, criterion or practice which disadvantages people of a particular sexual orientation and which is not justified as a proportionate means of achieving a legitimate goal.

New legislation defines harassment as unwanted conduct that violates people’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

New legislation provides protection to lesbian, gay and bisexual workers throughout the entire employment relationship – from recruitment to dismissal. The ban on sexual orientation discrimination applies to terms and conditions, pay, promotions, transfers, training and dismissal.

Who is protected by the new legislation?

The new legislation protects from discrimination on the grounds of sexual orientation regardless of whether a person’s sexual orientation is towards people of the same sex, the opposite sex or both sexes. That means the law protects all people from sexual orientation discrimination: lesbians, gay men, bisexuals and heterosexuals/straight people.

The new legislation does not protect people only from discrimination based on their actual sexual orientation. Discrimination on the grounds of assumed sexual orientation is also banned and it is not important whether a person’s sexual orientation is assumed correctly or incorrectly.

The new legislation also protects those people who are discriminated against because of the sexual orientation of the people with whom they associate – their family members and friends.

The new legislation covers:

• All employers and contract workers in Great Britain (England, Wales and Scotland)
• Office holders
• Police
• Barristers and advocates
• Partnerships
• Trade organisations
• Qualification bodies
• Providers of vocational training
• Employment agencies

Exceptions

Although this is significant legislation, which for the first time protects lesbians, gay men and bisexuals in employment, there are some areas where discrimination might still occur and would not be illegal. For example, same-sex partners might be denied certain benefits such as an occupational pension survivor’s benefit if they are specifically restricted to married partners only.

New legislation allows discrimination where there is a genuine occupational requirement, which is a ‘genuine, determining and proportionate’ reason for requiring the employee to be of a particular sexual orientation.

Lesbians, gay men and bisexuals might also face discrimination by religious organisations. The Regulations permit sexual orientation discrimination ‘for the purpose of an organised religion’ where the religion’s doctrine dictates or where required by ‘strongly held religious convictions of a significant number of the religion’s followers’. During the debate on the Regulations, a government minister, Lord Sainsbury of Turville, stressed that this exemption will only apply to a ‘very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion’. The High Court ruling on the new Employment Equality Regulations relating to sexual orientation in employment has confirmed that the scope for such discrimination by religious organisations is narrow. Teachers at faith schools, for example, cannot be sacked for being lesbian or gay.

The new regulations also contain a general exception if there is a necessity to safeguard national security.


What will Stonewall do about this?

Stonewall is anxious to prevent exemptions from being used by religious organisations to discriminate.


Enforcement

Lesbians, gay men and bisexuals who have been discriminated against because of their sexual orientation can submit a complaint to an employment tribunal. Cases of sexual orientation discrimination in the area of training and education will be heard by county courts. Complaints to employment tribunals must be submitted within three months of the act of discrimination and within six months to county courts.

The burden of proof lies on the employer. This means that rather than the employee proving there has been discrimination, the employer has to demonstrate that they have not violated the law.

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