3 Oct 2016

In November 2005, ACAS introduced a guide for employers and employees to assist in interpreting the Employment Equality (Sexual Orientation) Regulations (“the Regulations”) which came into force on 1 December 2003.  The Guidance is a vital tool in considering possible scenarios which may arise under the Regulations.

  1. The first top tip is to take a quick look at the guidance itself, with particular regard to the examples given. It’s easy to read and clearly explains the difference between direct discrimination, indirect discrimination, harassment and victimisation, by reference to practical scenarios.  The Guidance is available on the ACAS website which is www.acas.org.uk
  2. Don’t assume that only homosexuals are protected by the Regulations. The Guidance reiterates that sexual orientation is defined as not only orientation towards persons of the same sex (lesbians and gay men) but also orientation towards persons of the opposite sex (heterosexual) and also orientation towards persons of the same sex and the opposite sex (bisexual).  Helpfully, the Guidance clarifies that the terms “heterosexual”, “bisexual”, “lesbian” and “gay” are considered generally acceptable.
  3. Remember that, as well as applying to all employment and vocational training situations employees, the Regulations apply to the recruitment process and the terms on which someone is offered a job. The Guidance recommends that organisations are careful to distinguish between essential job criteria and mere personal preferences of the recruiter. Unnecessary selection criteria should be removed and care should be taken on the wording of application forms for jobs.  It is unlikely for instance that an organisation needs to know the marital or civil partnership status of an applicant. The Guidance also notes that good practice is to avoid asking questions not obviously related to the post (such as those concerning marital status, children, care arrangements, sexual orientation and social life), to avoid any (correct or incorrect) perception of discrimination.
  4. The Guidance affirms the need for good practice and a strong written Equality Policy covering all employment situations from initial recruitment through to providing references after employees have left.  Such a policy makes employees feel confident and discourages discriminatory attitudes and behaviours.
  5. However, an Equality Policy by itself is not enough. The Guidance recommends that staff are trained on the Equality Policy regularly since this will help reduce the likelihood of discrimination, harassment and victimisation taking place. It may also provide a defence for the employer if discrimination by an individual does take place. The Guidance gives recommendations as to such training should cover, including:   Avoidance of homophobic comments and jokes;  The use of inappropriate language intended as “banter”, but which may be degrading or distressing.  The possibility of personal liability (and orders personally to pay compensation) for harassing others;  HIV/aids awareness but great care be taken to avoid stereotyping (for example, gay men are sometimes assumed to be HIV positive).
  6. Privacy is critical when dealing, however tangentially, with sexual matters. The Guidance reminds employers that not everyone is comfortable talking about their partner with their manager or colleagues. Managers should not forget that even basic information such as a partner’s name is confidential; nor should they assume that it is common knowledge. Accordingly, personal information should be maintained in the strictest privacy. Confidentiality of procedures and information management systems should be enforced and staff given assurances to maintain their confidence in the same.
  7. Bear in mind that if someone feels that they have been discriminated against or suffered harassment, they may find it difficult to raise such a complaint.  This is particularly true in the case of discrimination on grounds of sexual orientation since victims may fear that they may be “outed” in the workplace by making such a complaint. If you have trained your managers properly, this will help to build employees’ confidence in managers. Having designated people who are trained to deal with discrimination and harassment will assist in this process as well. The Guidance recommends monitoring of the content of disciplinary and grievance procedures to alert management to any homophobic or other discriminatory attitudes within the workplace.
  8. Take care to avoid discrimination in the provision of benefits to employees’ partners. If benefits (such as insurance or private health care) are provided to employees’ opposite sex unmarried partners then they should also be provided to same sex partners, otherwise this would constitute discrimination under the Regulations.  Similarly, following the Civil Partnership Act which came into force on 5 December 2005, civil partners of employees should be treated in the same way as spouses of other employees. 
  9. Remember that harassment based on a perception of someone’s sexual orientation is also covered by the Regulations. Therefore if someone makes a comment which involves an inaccurate perception of an individual’s sexual orientation, this could be grounds for harassment. 
  10. Take care in attempting to monitor the sexual orientation of your staff, no matter how good your intentions in doing so. The Guidance advises that, while diversity monitoring is generally good practice, there is divergence of opinion within employers, employees and lesbian and gay communities as to a number of related issues. Staff may view questions about their sexual orientation as an invasion of privacy (and thus may not answer accurately anyway). The Guidance recommends that specialist assistance may be useful concerning the methods and format of monitoring in this sensitive area. If monitoring is untaken then staff should be told why and given clear guidance as to how the information will be used. They should be told that there is no obligation to give the information and anonymity and confidentiality must be scrupulously safeguarded.

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