Frequently asked questions - Employers
We have had many enquiries from both employers and employees who are still confused about the Employment Equality (Sexual Orientation) Regulations that came into force in December 2003. We have put together below some of the questions and answers that seem to crop up on a regular basis.
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About the new regulations
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Where did these new regulations come from?
The Employment Equality (Sexual Orientation) Regulations 2003 were passed by Parliament as a result of the EU Employment Directive outlawing discrimination on grounds of sexual orientation, religion or belief and age in employment and vocational training.
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What aspects of employment do the regulations cover?
The regulations apply throughout the employment relationship – during the recruitment process, in the workplace, on dismissal, resignation and retirement and in certain circumstances, after the employment has finished.
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Who is covered?
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Since I can’t tell who is gay or lesbian from who isn’t, how will I know if I am discriminating?
Many employees who are protected at work do not obviously display their protected characteristics e.g. religion, disability. Their identity may be revealed in casual workplace conversation. They are nonetheless protected and you should consider ways in which you might measure progress against discriminatory cultures and practices. These might include workforce monitoring, staff attitude surveys, self organised workplace groups for lesbian, gay and bisexual staff and how and where you chose to promote your organisation’s commitment to equality. These issues are discussed below.
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I deliver vocational training – are my students covered?
Yes. Like employment, the regulations apply throughout the vocational training relationship – during the application processes, at the training venue, and in certain circumstances after the vocational training has finished. This also covers further and higher education.
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One of my staff has complained to me about their colleagues making anti-gay jokes. Surely this is just harmless fun?
This ‘harmless fun’ creates an atmosphere of at best mockery and at worst hostility against lesbians, gay men and bisexuals in your workforce. It opens the way for more serious forms of harassment to be seen as acceptable and you may lose good staff as a result of their discomfort in your workplace. This kind of activity is covered by the regulations and you should take action to prevent it.
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One of my staff has just complained about homophobic harassment but they are not even gay! Do they have a case?
Yes. The regulations protect not just lesbians, gay men and bisexuals but also heterosexuals who are erroneously labelled as gay or lesbian and discriminated against because of that label.
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Do the regulations cover transgender workers?
No. Gender reassignment is a separate issue and unrelated to sexual orientation. However, similar protection is available for transgender workers under the Sex Discrimination (Gender Reassignment) Regulations 1999.
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Policies and procedures
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I reckon my policies are good enough – Must I change them every time the government comes up with new regulations?
Your policies should ensure that sexual orientation is included. It is a good idea to revisit your policies from time to time to ensure they have not become outdated and to test that they meet current legislation requirements. Good employers are building on policies they already have in place around race and gender.
Staff should be made aware through training, notice boards, circulars, contracts of employment etc that it is not only unacceptable to discriminate, harass or victimise someone on the grounds of sexual orientation, it is also unlawful. Staff should know what to do if they believe they have been discriminated against or harassed, and this should be included in your grievance procedure.
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Do I have to have an equality policy?
No, but implementing and observing such a policy is a commonplace means of demonstrating that you take reasonably practicable steps to prevent employees discriminating against or harassing other employees. The policy should set out the minimum standard of behaviour expected of all staff through recruitment onwards. It acts as a reminder, gives staff confidence that they will be treated with dignity and respect, and may be used as an integral part of a grievance or disciplinary process if necessary. Not having a policy could be used as evidence against you in a tribunal case. ACAS can assist you in developing a policy (see below for details).
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Do I need to provide diversity training as a result of these regulations?
No, not explicitly. However, cases under this law will likely be judged upon the same legal criteria as discrimination based on other protected characteristics such as race and gender. This means that a prudent employer will have exercised reasonable care to prevent and/or address discrimination or harassment in the workplace. Diversity training can definitely help to achieve this.
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Do I now have to introduce positive action schemes for lesbians, gay men and bisexuals?
No. The law does, however, allow organisations to introduce positive action measures where they can demonstrate that staff of a particular sexual orientation are at a career disadvantage or are under represented in the organisation.
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Do I now have to monitor my workforce?
No, monitoring of individuals is not required by the regulations. However, Stonewall’s position on monitoring is that employers should begin to monitor – and this is taking place in a range of blue chip companies like Barclays and public sector organisations like the Metropolitan Police. The pros and cons of monitoring workers’ sexual orientation are currently contentious – as was ethnic monitoring when it first began.
Monitoring is actually a healthy sign for a number of reasons:
- It can help you learn more about the needs of your workforce
- It can help you keep an eye on discipline and grievance issues
- It can help gay, lesbian and bisexual staff feel more included
- It can help support staff who want to be out at work
- It can help change the way people think, behave and work
Stonewall believes that in a tribunal, employers may be hard pressed to justify not monitoring sexuality if they already monitor other categories of discrimination.
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Employee benefits
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Must my organisation now invite partners of lesbians and gay staff to office events?
If heterosexual employees are allowed to bring their opposite sex unmarried partners, then you must ensure you extend the invitation to same sex partners. Organisations should take care not to unjustifiably change their existing policies in order to exclude same sex partners in the light of the new legislation (e.g. by changing rules from including unmarried heterosexual partners to just married ones). This may be viewed as discrimination and be unlawful. And under the Civil Partnership act, civil partners have the same rights as married couples in this area.
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Am I now required to offer domestic partner sick leave, health insurance or other benefits to gay and lesbian employees?
Yes, you must offer the same benefits to civil partners as to married couples, and if you offer benefits to unmarried partners of heterosexual employees, you must also offer them to partners of gay and lesbian employees.
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Do my staff members have the right to claim time off to deal with emergencies involving their same sex partners?
Under the Employment Rights Act 1996 (as amended by the Employment Relations Act 1999) employees are entitled to unpaid leave to deal with unexpected or sudden problems concerning a dependent or close family member including a same sex partner. [This particular regulation does not apply to those who are self employed, members of the police service or armed forces].
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Working with customers and service users
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Can we assign effeminate men or masculine women to jobs that do not have direct contact with the public for fear of potential adverse response by our customers?
No. Work must be assigned on non-discriminatory work related criteria. Just as it is illegal to assign women wearing the hijab to non-public job positions because of potential prejudicial reaction, it is likewise illegal to make those assignments based on sexual orientation or potential perceptions of sexual orientation.
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I have a staff member who was harassed by a customer – is this covered?
Yes – as an organisation you should protect staff from such harassment and take steps to deal with actual or potential situations of this kind.
One way to find out if people are leaving because of harassment is to undertake exit interviews when people leave and include the question of whether they have ever felt harassed, bullied or discriminated against in the workplace.
Additionally monitoring will allow staff to feel included, assist in staff making the decision to be open at work, help you as an employer to identify need and generate management information to monitor discipline and grievance instances.
Your staff should be made fully aware of why you wish to collect the data, how it will be used and how you will ensure confidentiality and anonymity. They should be informed that they are under no obligation to give such information – under the Data Protection Act organisations require the consent of individuals to collect and use such information.
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Staff relations
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Do I need to provide separate toilets, changing room and shower facilities for lesbian, gay or bisexual employees from those used by heterosexual employees?
No. In fact doing so will be illegal. If the reason this is being considered is fear of inappropriate sexual activity your workforce should already be covered by this. Every employer has a legal duty to maintain a work environment that is free from sexually harassing or hostile behaviour.
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Can a member of staff refuse to work with a lesbian, gay or bisexual colleague because they say it is against their religion?
No. Being able to work with all colleagues is a requirement of doing the job. It would be perfectly acceptable to discipline a member of staff that refused to work with other staff on the basis of their religion. It is important that your recruitment and induction processes make it explicit what your equal opportunities policies say, and what the law says. Be clear about what is acceptable and unacceptable behaviour. Existing members of staff, and in particular those in management roles, should be made aware of their responsibilities under the new legislation and any changes to policies and procedures.
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No one in my organisation has ever complained of discrimination or harassment so I don’t need to do anything new do I?
People don’t always feel confident enough to complain – particularly if their harasser is in a more senior position. Sometimes they will simply resign.
You need to find ways of helping staff in this situation speak out. These might include workforce monitoring, staff attitude surveys, self organised workplace groups for lesbian, gay and bisexual staff and how and where you chose to promote your organisation’s commitment to equality.
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Exemptions and non-exemptions
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Can a lesbian, gay or bisexual member of staff be sacked (or refused employment) by an employer that has a religious foundation (such as a religious school or church body)?
In any event, a religious organisation cannot discriminate against someone who is already in post. It only applies to the recruitment process and then only in very limited circumstances. The High Court has ruled that the scope for a religious organisation to discriminate against lesbian, gay and bisexual people is narrow and would apply in only a few cases. It would not cover, for example, a teacher in a faith school as their sexual orientation would be of no relevance to their job. The exact limits of the exception will have to be tested in more detail by cases brought to employment tribunals or the courts.
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I provide specific services to lesbians, gay men and bisexuals and want to employ workers who are themselves gay or lesbian. Am I allowed to do this?
Yes. You need to be able to justify that there is a genuine occupational requirement (GOR) for the employee to be of a certain sexual orientation. You need to be very clear about this as, in the event of an employment tribunal claim, the burden of proof will be on you to prove this. Tribunals tend to interpret GORs narrowly since they effectively go against the principal of equal treatment.
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Further help
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Where can I get further advice?
You can download Stonewall’s detailed guidance for employers.
You can also contact ACAS who will offer a range of detailed advice to assist you. Contact them on: www.acas.org.uk ring 020 7210 3613 or write to Brandon House, 180 Borough High Street, London, SE1 1LW to find out their regional offices or contact ACAS’s advisory lines:
- Equality Direct is a confidential advice service for small businesses on equality.
08456 00 34 44 Monday - Friday 09:00 - 16:30
- The Advisory Service has experienced advisers who work with larger organisations.
08457 47 47 47 Monday - Friday 08:00 - 18:00.
* Stonewall accept no responsibility for the content of external sites.
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