UK: Discrimination On The Grounds Of Sexual Orientation, Religion Or Belief

Originally published in January 2004

Both sets of Regulations apply to all employment and vocational training (there are specific provisions for schools and institutions of higher and further education) and include recruitment, terms and conditions, promotions, transfers and dismissals. They make it unlawful on the grounds of sexual orientation or religion or belief to:

• treat anyone less favourably because of their religion or belief or their actual or perceived sexual orientation;
• apply a criterion, provision or practice which disadvantages individuals of a particular sexual orientation, religion or belief - unless it can be objectively justified;
• subject someone to harassment;
• victimise someone because they have made or intend to make a complaint or allegation or have given or intend to give evidence in relation to a complaint of discrimination;
• discriminate against someone, in certain circumstances, after the working relationship has ended.

The Regulations afford protection to heterosexuals, gay men, lesbians and bisexuals.

There is now a statutory definition of harassment which is unwanted conduct that 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.

Such conduct will include nicknames, teasing and name calling and other behaviour which may not be malicious but which is upsetting to the individual concerned. This may make it difficult for employers to realise that harassment has or is occurring. For example, we were presented with a situation prior to these Regulations coming into force where a Muslim employee complained that he found a colleague wearing a crucifix offensive. Would this now amount to harassment under the Regulations? Would asking the colleague to cover up or not wear the crucifix also be discrimination?

Harassment extends to cover conduct about the sexual orientation (real or perceived) of those people with whom the individual associates, for example, where a worker is teased about his brother’s sexuality. Employees should also be aware that telling jokes, for example, about gay men could constitute harassment even if there are no gay men present when the joke is told.

The Regulations acknowledge that sometimes it will be lawful to treat an individual differently if it is a genuine occupational requirement (GOR) that the job holder is of a particular sexual orientation. To be able to rely on this provision an employer will need to consider the nature of the work and the context in which it is carried out. One example could be where a business provides tourism services to a country where gay sex is illegal and therefore may be able to prove that there is a GOR for not appointing a lesbian, gay or bisexual employee who would need to work in that particular country. Different treatment is also permitted in certain circumstances where the employment is for the purposes of an organised religion.

Employers need to be wary of discriminating against workers once they have left the organisation, for example, by refusing to give a reference for an employee who was not accepted by her colleagues because she is a lesbian. There is no specific time limit after the termination of employment to which the Regulations will apply.

As is clear from the summary above, many of the concepts in these Regulations are identical to those in the sexual orientation regulations. In addition, the definition of harassment is the same, there is a GOR defence and the regulations extend to give workers protection after the termination of their employment.

The Regulations define religion or belief as "any religion, religious belief or similar philosophical belief" and it will be for the Employment Tribunal and the courts to decide what particular circumstances are covered by the Regulations. Whilst political beliefs are stated as falling outside the definition how will this work in practice? What about fundamental Muslims who want to introduce Shiite law – where will the distinction between religion and politics be drawn? Could communism be a philosophical belief as well as or instead of a political belief?

When using the defence of a GOR, an organisation may be able to show that the organisation is founded on an ethos based on a religion or belief and that it is a requirement of the job to adhere to the ethos and proportionate to apply the requirement. However, employers must be careful not to apply a "blanket" GOR to all posts as they will need to show that the GOR is reasonable when considering the nature of the job and the context within which it is carried out. Accordingly where a GOR may be proportionate for a teacher at a Hindu school could you apply the same GOR when recruiting for the post of school caretaker?

Individuals can claim in the Employment Tribunal or County Court if they feel that they have been discriminated against on the grounds of sexual orientation, religion or belief. The Court or Tribunal has the power to award compensation (which is not capped) to the individual and order specific steps to be taken to reduce the adverse effect. A failure to implement those steps may lead to the Tribunal increasing the compensation award.

• Up-dating or implementing a robust Equality Policy which includes all forms of discrimination.
• Providing equality training to employees about what constitutes discrimination and how it should be dealt with in the workplace – it is no good having a policy if no-one knows about it.
• Ensuring that there are clear guidelines for staff to follow if they feel they have been discriminated against, harassed or victimised.
• Making employees aware that they could be personally liable for discrimination arising out of harassment and that it constitutes a disciplinary offence.
• Ensuring there are processes to ensure confidentiality of procedures and processing of information and reassuring staff that this is the case.
• Checking existing dress codes and holiday procedures for potential discrimination against a particular religion or belief.
• Reviewing job adverts with a GOR to ensure it is a genuine GOR and ensuring those involved with recruitment are aware of the Regulations.
• Checking whether any pension scheme offered to employees falls foul of the Regulations, in particular in the area of pensions for partners of a deceased employee.

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.