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Sexual orientation in the workplace

June 2005

Dealing with discrimination
Career barriers in medicine: doctors’ experiences (2004) [Go to reference 1] describes a range of discrimination and bullying that some lesbian, gay and bisexual doctors’ experience. The research reveals that homophobia exists within the medical profession, that fear of discrimination is prevalent among lesbian, gay and bisexual doctors, and that some doctors choose a particular specialty or avoid others based on fears about colleagues and patients perceptions of their sexuality.

Advice for doctors dealing with discrimination
Dealing with discrimination: guidelines for BMA members (2004) [Go to reference 29] is a comprehensive and regularly updated resource for BMA members who require practical advice and guidance regarding discrimination. It provides a comprehensive overview of equality legislation with examples as well as information on professional standards for doctors. The resource includes the following key points:

What should a BMA member do if they feel that they have been discriminated against?
If a BMA member considers that they may have been discriminated against then the member should contact askBMA on 0870 60 60 828 for information and advice on their rights. There is a deadline of three months less one day from the date when the act of discrimination occurred, by which time an application has to be submitted to an employment tribunal.

The member will be advised, not only of the legal position, but also on the best strategy for addressing the member’s concern. Advice and representation is provided under the terms and conditions set out in the association’s directory of membership services, Your BMA.

Informal approach
In our experience it is preferable for all concerned if a complaint of discrimination can be resolved informally.

Submitting a formal complaint to the employer
In certain circumstances it may not be possible, or appropriate, to seek an informal resolution of the member’s complaint. In these circumstances the matter will be referred, in the first instance, to the employer’s procedure for dealing with complaints of alleged discrimination. Serious allegations of harassment are normally dealt with under the employer’s disciplinary policy.

It is important to highlight that most employers will instigate disciplinary proceedings against an employee who makes a frivolous or vexatious complaint.

Making an application to the employment tribunal
Employment tribunals will consider applications where unlawful discrimination is alleged. This applies to claims of discrimination that are covered by legislation, including the Employment Equality (Sexual Orientation) Regulations 2003.

Discrimination law is complex. The BMA has therefore appointed external lawyers to advise and where appropriate pursue claims of unlawful discrimination to employment tribunals on behalf of members.

How can a BMA member avoid discriminating against employees?
The key to an employer avoiding unlawful discrimination is to introduce an equal opportunities and harassment policy and then to ensure that the policy is implemented in practice and regularly monitored. BMA members may obtain further advice on these matters by contacting askBMA.

Some of the essential components of equal opportunities policies address the following:
- recruitment and promotion

- training and development

- pregnancy and maternity

- flexible working

- harassment and bullying

- responding to complaints from employees.

Source: Dealing with discrimination: guidelines for BMA members (2004) [Go to reference 29]

The application of the Employment Equality (Sexual Orientation) Regulations 2003 will require that the burden of proof lies with 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.