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Sexual orientation in the workplace

June 2005

Legislative background
The Employment Equality (Sexual Orientation) Regulations 2003
In response to the European Union Employment Equality Directive 2000/78/EC,[Go to reference 2] the Employment Equality (Sexual Orientation) Regulations 2003 were enacted across Great Britain (England, Scotland and Wales). The aim of this legislation is to ‘outlaw discrimination in employment and vocational training on grounds of sexual orientation’. [Go to reference 3]. The legislation is applicable to all aspects of employment and vocational training such as recruitment, terms and conditions, pay, promotion, transfers and dismissals. Separate, but similar legislation was introduced for Northern Ireland (The Employment Equality [Sexual Orientation] Regulations [Northern Ireland] 2003).

Although the Employment Equality (Sexual Orientation) Regulations 2003 are widely welcomed, there are some significant concerns raised in the literature. The legislation protects people from unlawful discrimination in employment and vocational training, for example, but does not extend to the provision of goods and services. In addition there are lawful exceptions that can be made to the regulations if there is a genuine occupational requirement (GOR), for example to safeguard national security, if benefits are dependent on marital status, or for positive action. [Go to reference 4] GORs may apply if employers can show that it is essential for a person with a specific sexual orientation to perform all or some of the required duties. [Go to reference 5] However, a GOR may not be used to maintain a balance of individuals with different sexual orientations within an organisation. The provision of benefits based on marital status is controversial because same-sex couples cannot currently marry in the UK. [Go to reference 6] The Regulations do not address heterosexual cohabiting couples as they have the option of marrying. To achieve complete equality, legislation will need to address marital status, cohabitation and subsequent rights and benefits for all individuals. In the interim, employers should recognise the benefits of instituting best practice non-discriminatory policies in the workplace.

At the time of writing there has been one successful employment tribunal award of £35,000, as reported by the BBC. [Go to reference 7]. The tribunal found that an employee had been harassed at work because of his sexual orientation. The harassment included homophobic jokes and being publicly ridiculed for being gay. While this demonstrates that harassment, victimisation and discrimination on the grounds of sexual orientation is unacceptable, it must be noted that employment tribunal decisions do not create a legal precedent.

Other recent legislation dealing with sexual orientation
Although not yet introduced, an Equality Bill was announced in the 2004 Queen’s speech. This Bill will create a new Commission for Equality and Human Rights, which will amalgamate the current Commission for Racial Equality, Equal Opportunities Commission, and Disability Rights Commission into one equality organisation for Great Britain.

The Civil Partnership Act 2004 received Royal Assent and will be implemented on 5 December 2005. [Go to reference 8]. It addresses the relationships of individuals of the same sex and allows them to form a civil partnership. Requirements in the Civil Partnership Act 2004 include:

- a duty to provide reasonable maintenance for your civil partner and any children of the family
- civil partners to be assessed in the same way as spouses for child support

- equitable treatment for the purposes of life assurance

- employment and pension benefits

- recognition under intestacy rules

- access to fatal accidents compensation

- protection from domestic violence

- recognition for immigration and nationality purposes. [Go to reference 9]

The executive summary to the framework for the legal recognition of same-sex couples outlined the need for legislation:

‘Same-sex couples face many problems in their day-to-day lives because there is no legal recognition of their relationship. In many areas, each partner in the couple is treated as a separate individual; they are denied rights and responsibilities that could help them to organise their lives together. Opposite-sex couples have the choice to marry and have their relationship recognised by law. Same-sex couples have no such choice.’ [Go to reference 9]

This legislation is not meant to recognise those couples who are denied rights and responsibilities because they choose not to marry.

Legislation affecting trans doctors
Trans (transsexual, transgender and transvestite) issues are primarily about gender identity, not about sexual orientation. As such they are not entirely relevant to this guidance document. However, in some cases legislation on trans issues may have implications for attitudes towards lesbian, gay and bisexual doctors.

The Gender Recognition Act 2004 addresses trans issues in Great Britain. It provides for Gender Recognition Panels to assess applications from transsexual people seeking legal recognition of their acquired gender. Section 22 of the Act makes it an offence to disclose ‘protected information’ when that information is acquired in an official capacity. It defines ‘protected information’ as information about a person’s application to the Gender Recognition Panel for gender recognition and a person’s gender history after that person has changed gender under the Act. The Act, however, also contains a series of exceptions that allow ‘protected information’ to be disclosed for valid public policy reasons. This applies to exceptions in the following three circumstances:

- exceptions for faith communities in the matter of marriage, ordination and appointment

- exceptions to permit disclosure of orders of a court or tribunal by credit reference agencies

- exceptions for medical purposes.

The Department for Constitutional Affairs has issued a consultation on proposed exceptions to the Gender Recognition Act 2004. In response to the Gender Recognition Act 2004, the Equality
Challenge Unit has written guidance for employing transsexuals in higher education.[Go to reference 10]. Further information on trans issues, including the new legislation, is available from the Department for Constitutional Affairs,[Go to reference 11], The Gender Trust [Go to reference 12], the Gender Identity Research and Education Society [Go to reference 13], and Press for Change.