The Employment Equality (Sexual Orientation) Regulations 2003 (“the Regulations”), which came into force in December 2003, made it unlawful for an employer to discriminate against a worker because of his/her sexuality. The lack of reported case law could give the impression that the Regulations have not had a significant impact, but that would paint a false picture….

Background

The Regulations made it unlawful to directly or indirectly discriminate, harass or victimise workers on the grounds of their sexual orientation. They apply to all terms and conditions of employment (such as salary, benefits, training, promotions and dismissal) and protect gay, lesbian, bisexual and heterosexual workers before and after any period of engagement by the employer.

Controversial legislation

From the outset the Regulations have proved to be controversial, including a high profile challenge to their legality. In Spring 2004, seven unions, in an action coordinated by the TUC, challenged the Regulations as being “incompatible” with European Law. The unions campaigned against the exemption of religious organisations from the Regulations. They argued that this exemption would allow employers to stop lesbian, gay or bisexual people from working at church schools and other religious organisations such as voluntary organisations. The unions also challenged the exemption for certain pension benefits based on marital status.

Whilst the unions lost their legal challenge, the Civil Partnership Act (which comes into effect on 5 December 2005) has largely remedied the pensions issue.

Lack of reported cases

It is thought that only a handful of claims have been brought under the Regulations, with employees seemingly faring better than employers so far (See previous hrlaw article: Think Pink! – the first successful case under the new sexual orientation legislation of 15 Feb 2005). 

  • The first reported case was, ironically, before Chairman Vivienne Gay in the Employment Tribunal. Rob Whitfield, a homosexual office manager, won over GBP35,000 after successfully suing Cleanaway, a waste management company, for constructive unfair dismissal, harassment and direct sexual orientation discrimination. Mr Whitfield was subjected to a campaign of homophobic abuse during his employment, and claimed that Cleanaway tolerated such abuse. Senior colleagues nicknamed him “Sebastian” – allegedly after the character in the comedy Little Britain.
  • Tom Philips, a homosexual researcher for the Labour MP Candy Atherton, recently lost his claim for discrimination and harassment based on his sexual orientation. Mr Philips was asked to “dig the dirt” on the private life of a homosexual Conservative candidate so that Ms Atherton could use it as a political tool. It is worth noting that there was no allegation of homophobic comments about Mr Philips.
  • Alan Whitehead, a worker on Brighton Palace Pier, resigned and claimed constructive unfair dismissal and harassment after his manager made a homophobic comment about Mr Whitehead to another colleague. Mr Whitehead found out that his manager had made the remark, which was found by the Tribunal to be exceptionally offensive to gay men, and was awarded nearly GBP10,000 in damages and compensation.
  • It has recently been reported in the press that Deutsche Bank has settled its well-publicised dispute with Sid Saeed, a former Vice President of risk analysis, after his colleagues made homophobic remarks about him. Mr Saeed complained that the Bank tolerated this campaign of homophobic abuse. The Bank’s decision to settle suggests that employers acknowledge the risks that allegations of homophobic comments made in the workplace will lead to a successful claim in the Tribunal.
  • The most recent claim to have been reported looks as though it will be for the highest amount of compensation: Peter Lewis, a former GBP1million a year senior investment banker at HSBC, is claiming around GBP5million for unfair dismissal and discrimination based on his sexual orientation. Mr Lewis’ claim is due before the Tribunal later this year.

Protective action

Given these recent awards, employers must be concerned that they could be liable for offensive remarks made by their employees in the workplace – even if the comments are not made directly to the complainant. The above cases suggest that successful complainants will be entitled to significant sums in compensation under the Regulations, and that employers will also be subjected to unwanted press attention.

Employers can help to change attitudes and minimise the risk of a worker showing that his/her employer tolerates sexual orientation discrimination (which case law shows can land employers in hot, and expensive, water) by:

  • making sure that their equal opportunities policy deals with sexual orientation (as well as sex, race and nationality, disability and religion);
  • educating employees in the work place; and
  • disciplining employees who make inappropriate and inflammatory comments.

It is likely to take some time for employers to turn around work-place attitudes, particularly in environments which traditionally have aggressive, macho cultures. Because of this, and as with sex discrimination, we can expect large claims to be brought against some household names for the foreseeable future.

The future?

Two proposals are likely to have an impact on the Regulations in the near future.

  • The Civil Partnership Act (“the Act”) will allow lesbian and gay couples to gain formal legal recognition of their relationships. In order to take account of the Act, the DTI is carrying out a consultation on proposed amendments to the Regulations. It is proposed that a civil partner will be afforded status comparable with a spouse, so that a civil partner who is treated less favourably than a married person would have been in similar circumstances can bring a complaint for discrimination on the grounds of his/her sexual orientation.
  • A single commission will be established to police anti-discrimination legislation in respect of sex, disability, age, race and nationality, and sexual orientation. The Commission for Equality and Human Rights (CEHR) will bring together the work of the Equal Opportunities Commission, the Disability Rights Commission and, eventually, the Commission for Racial Equality and is intended to “put expertise on equality, diversity and human rights under one roof”. It is proposed that the CEHR will review equality laws, challenge discrimination across society, and promote human rights. The Government sees the CEHR as being a “key step towards realising our vision of a fairer, more cohesive and prosperous Britain based on mutual respect and understanding”. However, it may take more than that to changes attitudes in Britain’s workplaces.

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