What protection is available to lesbian, gay and bisexual workers?
The law 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 Equality Act, 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.
Harassment is defined 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?
The Equality Act 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 doesn’t only protect people from discrimination based on their actual sexual orientation. Discrimination on the grounds of assumed or perceived sexual orientation is also banned and it is not important whether a person’s sexual orientation is assumed correctly or incorrectly.
The law 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
• Barristers and advocates
• Trade organisations
• Qualification bodies
• Providers of vocational training
• Employment agencies
Wales Public Sector Equality Duties:
Welsh public sector bodies such as local authorities, health boards and government agencies fall under the Public Sector Equality Duty in Wales. This secondary legislation requires Welsh public bodies to set clear equality goals, saying just how they will deliver for all protected characteristics and collect data on the make-up of their workforce. More information can be found here.
Although this is significant legislation, which protects lesbians, gay men and bisexuals in employment, there are some areas where discrimination might still occur and would not be illegal.
The Equality Act 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 original regulations introduced in 2003, 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.
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.
The Employment Equality (Sexual Orientation) Regulations 2003 were a result of theUK’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.
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.
From 1 October 2010, provisions in the Equality Act 2010 protect people from discrimination in employment or training on grounds of sexual orientation.
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