Happy 2nd Birthday Civil Partnerships - But employers remain unaware of legal obligations

5 December 2007 marked the 2 year anniversary of the introduction of the Civil Partnership Act 2004 (ìCPAî). This groundbreaking law enables same sex couples to enter into a civil partnership, thereby providing legal recognition of the relationship.

Running alongside the CPA are the Employment Equality (Sexual Orientation) Regulations 2003 (the ìSexual Orientation Regulationsî) which have been in force since 1 December 2003. The Sexual Orientation Regulations prohibit discrimination against employees in the work place on the grounds of their sexual orientation. The Sexual Orientation Regulations follow a similar pattern to the more established Sex Discrimination Act 1975 and Race Relations Act 1976.

The rights under the CPA coupled with the Sexual Orientation Regulations, confirm the governmentís drive to protect the rights of persons who are lesbian, gay and bisexual, particularly in their role as employees. The CPA is still in its infancy but how effective have the Sexual Orientation Regulations been so far and how can employers stay within the law?

The Law
The following conduct, if based upon an employeeís sexual orientation, is unlawful:-

ï direct discrimination - where a person is treated less favourably on the grounds of sexual orientation; whether that be their own sexual orientation or by association with the sexual orientation of another.

ï indirect discrimination - where:-

o (i) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B (for example, an advert requiring a husband and wife team) but which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons;

o (ii) which does put B at that disadvantage; and

o (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.

ï victimisation - where a person is treated less favourably because of something they have done under, or in connection with, the Sexual Orientation Regulations. For example, an employee who has raised a complaint of discrimination on the grounds of sexual orientation, in the Employment Tribunal, and has then been disciplined at work.

ï harassment - unwanted conduct which has the purpose or effect of either violating the dignity of another person or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her. This conduct need not be intentional but must merely have the ìpurpose or effectî of producing those consequences.

The Sexual Orientation Regulations protect not only those persons already employed, but also those persons who seek employment with an employer and, in certain circumstances, those employees who have left employment. Employers should also bear in mind that, although the focus of this article is on the rights of employees who are gay, lesbian and bisexual, heterosexuals would also be protected by the Sexual Orientation Regulations. Examples are if a heterosexual employee was treated less favourably:-

ï than a person or group of another sexual orientation;
ï because of association with a person of another sexual orientation; or
ï due to another personís mistakenly held belief that that person was of a certain sexual orientation.

The above is only a very brief summary of the law relating to discrimination of employees on the grounds of sexual orientation but highlights the complexities and the need for employers to understand their obligations in order to prevent claims arising.

Current situation

In 2005 the DTI (now the Department of Business Enterprise and Regulatory Reform) funded ACAS to conduct research into the impact of the Sexual Orientation Regulations.

ACAS presented their research conclusions on 2 April 2007, finding that:-

1. between January 2004 and September 2006, 470 individuals brought employment tribunal claims where the main allegation related to discrimination on the grounds of sexual orientation;

2. two thirds of those claims were brought by men; and

3. the sexual orientation claims were dominated by bullying and harassment allegations.

ACAS found that allegations included name calling, verbal threats, intimidation and even physical abuse and sexual harassment by colleagues. Many employees also alleged that they had been disciplined or dismissed after raising a grievance relating to their treatment by colleagues, or were forced to resign and claim constructive dismissal due to their treatment.

Some employees alleged that they had been dismissed for acts of gross misconduct (for example, an attack on a colleague) but claimed that it had been provoked by bullying and harassment based on their sexual orientation.

Consequences if employers get it wrong

Many employers remain unaware of the law relating to sexual orientation, or unaware of the particular obligations upon them. However, the risk attached to this is potentially huge.

If an employee does bring an Employment Tribunal claim then compensation for discrimination on the grounds of sexual orientation is unlimited. Employers can be vicariously liable for the actions of an employee, whether or not those actions are with the knowledge or approval of the employer.

Notwithstanding the monetary aspects of issues relating to sexual orientation if, for example, an employee is being bullied at work due to their sexual orientation, this causes considerable upset and distress for that particular employee but can also cause tensions and unease amongst other staff in that office or environment. Such issues are not conducive to a pleasant or effective working environment.

Top tips for employers

There remains much ambiguity about the Sexual Orientation Regulations and the CPA and, until there is significantly more case law to clarify the Regulations, employers should consider how they can protect themselves now and in the future.

Employers should:-

1. ensure that they have an effective equal opportunity policy in place, which covers sexual orientation;

2. ensure that any policies and procedures covering the above matters show respect for the sensitivity of the matter and reflect the importance of maintaining confidentiality;

3. ensure that all employees are aware of the contents of the equal opportunity policy and of the applicable law so that they are aware of their rights and obligations, and are aware of the procedures for making a complaint if they do have a problem. Failure by a line manager, for example, to identify and deal with an issue protected by the Sexual Orientation Regulations, due to their ignorance of the applicable laws, will not protect an employer against any legal proceedings;

4. provide training to employees, particularly the managers and senior employees who may have to identify issues or deal with grievances/disciplinary matters based on complaints relating to sexual orientation, and work place representatives who may have to assist employees if they want to raise a complaint. If it is practical, it is advisable for employers to have a named individual who is appropriately trained and responsible for any employment equality matters and complaints;

5. have a zero tolerance attitude towards any bullying and harassment, particularly if based on sexual orientation (or any other forms of discrimination);

6. be aware of the rights of civil partners of employees, who should be treated in the same way (particularly in relation to benefits) as married partners of employees. (For the purposes of this article any reference to civil partners means only civil partners who have registered under the CPA);

7. consider their policies in respect of any benefits which may be given to spouses of married employees and amend those policies (and any related forms etc) accordingly to take into account the rights of civil partners;

8. seek professional advice as to whether they need to modify the rules of their occupational pension schemes to ensure that civil partner survivors are included;

9. consider their family friendly policies, as civil partners will be entitled to the same family friendly arrangements as married couples are entitled to; and

10. try to avoid making people identify themselves as civil partners or of a particular sexual orientation in any forms or applications, unless absolutely necessary. If, for example, a form relates to benefits then, so long as the treatment given to married persons and civil partners is the same, there should be no need for an employee to have to identify to which group they belong.

One particular issue (as mentioned briefly at point 10 above) is whether employers should collect data on sexual orientation. Employers are not required to collect data on sexual orientation in order to comply with the Sexual Orientation Regulations.

Any employers that do decide to collect such data, as part of their equality monitoring process, should do so with caution and should seek legal advice before doing so. This is a particularly sensitive issue that is fraught with dangers if handled incorrectly. Staff should be told why the employer wants to collect the data, should be advised as to how and when that data will be used (and for what purpose) and should be assured that the information will be treated confidentiality. Any such data collected would also need to be stored and processed in compliance with the Data Protection Act 1998 (which is outside the scope of this article).

Conclusion

Employers must be aware of their obligations under the Sexual Orientation Regulations (and in respect of other protected forms of discrimination generally) to prevent employees claiming that they have been discriminated against. These issues are highly sensitive and should be treated appropriately to avoid claims of discrimination. Further, compensation is unlimited if an employeeís claim of discrimination is successful. Employers therefore ignore these issues at their peril.

Kerry Waters
Clarion Solicitors