Introduction
This legislation, enacted on 1st December
2003, was introduced to comply with the EU directive on equal
treatment in employment and occupation.
Who is covered?
The regulation applies to all persons, in both
public and private sectors, including public bodies, in relation
to:
-
Conditions of access to employment, including
promotion
-
Access to all types and all levels of vocational
guidance and training
-
Employment and working conditions including
pay
4. Membership of, and involvement in,
an organisation of workers or employees.
An employer will be liable for the unlawful actions
of his employees whether or not it knew of those acts.
Less Favourable Treatment
The regulations cover all forms of discrimination:
Direct Discrimination: Where one person is treated
less favourable than another on grounds of sexual orientation.
This can include comparison with the previous treatment of another
person, or how a comparable person might hypothetically be treated.
Discrimination can be based on the actual sexual orientation
of a person but also on the perception of the discriminator.
It is unlawful to discriminate against some on the grounds that
they associate with a person of a particular sexual orientation
or because they refuse to follow an instruction to discriminate
against someone by reason of sexual orientation.
Indirect Discrimination: To apply a provision,
criterion or practice which disadvantages people of a particular
sexual orientation unless it can be objectively justified. Indirect
discrimination is illegal whether intentional or not.
Victimisation: Adverse treatment or adverse consequences
imposed on an individual as a reaction to a complaint or to
proceedings aimed at enforcing compliance with the principle
of equal treatment.
Harassment: Unwanted conduct relating to sexual
orientation which violates a person's dignity or creates an
intimidating, hostile, degrading, humiliating or offensive environment
for them having regard to all the circumstances including the
perception of the victim.
Objective Justification
The regulations do however allow for indirect
discrimination to continue under specific conditions. For such
treatment to continue it must be 'objectively justified'. Therefore
it must be shown to correspond to a real business need, be necessary
to achieve the objective in question, and be proportionate to
it.
Burden of Proof
Where the complainant appears from the facts to
have case under this regulation then it shall be for the respondent
to prove that such an act did not occur
Exceptions
Genuine Occupational Requirement: In very limited
circumstances it will be lawful for an employer to treat people
differently if it is a genuine requirement that the job holder
be of a particular sexual orientation. When deciding if this
applies it is necessary to consider the nature of the work and
the context in which it is carried out.
Religion: The regulations also allow for differences
in treatment where the employment is for the purpose of an organised
religion. It would need to be established that the requirement
is necessary to comply with religious doctrine.
The regulations only apply to sexual orientation,
lesbians and gay men, heterosexual and bisexual people. It does
not affect the laws relating to sexual practices.
Positive Action: It is possible to take certain
steps to redress the effects of previous inequality of opportunity.
Although not permitted to discriminate positively, employers
may give special treatment to, or provide specific training
for persons of a particular sexual orientation who are in the
minority in the workplace.
National Security: The Regulations do not outlaw
any measure taken to safeguard national security so long as
it is justified.
Marital Status: Rules based on marriage do not
constitute unlawful discrimination on grounds of sexual orientation
despite the fact that it is not possible for same sex partners
to marry in the UK.
What to do next
If an employee suspects that they are being treated
less favourably treated by their employer on grounds of sexual
orientation they should alert their shop steward or branch equality
officer who may advise the member to use the organisation's
grievance procedure. Employees are also entitled to bring their
case before an employment tribunal.
The employer can be required to answer a questionnaire
about discrimination in your workplace. Complaints to an employment
tribunal must usually be brought within three months of the
act to which the complaint relates.
Further Information
Department of Trade and Industry: Employment Relations:
The Employment Equality Regulations 2003
http://www.dti.gov.uk/er/equality/eeregs_a.htm#b1
