Focus On Discrimination Law — Major Changes

Article by Mr Richard T. Martin, Mr Martin Piers, Ms Nicola Whitely, Ms Mandy Perry

and Ms Leigh J. Warden

The grounds upon which discrimination is unlawful are to be radically extended as a result of the adoption of three European Directives which require amendments to be made to existing law. The UK already prohibits discrimination in the employment field on the grounds of race, sex and disability, but these laws are now to be extended, prohibiting discrimination on the grounds of sexual orientation, religion or belief and age.

Regulations prohibiting discrimination on the grounds of sexual orientation will come into force on 1 December 2003. Similar Regulations on discrimination on the grounds of religion or belief come into force on 2 December 2003.

Provisions on age discrimination are not scheduled until 1 October 2006 and will be covered in a future commentary.

Employment Equality (Sexual Orientation) Regulations 2003

From 1 December 2003, it will be unlawful to discriminate against or harass a person in the workplace on the grounds of his or her sexual orientation.

The Sexual Orientation Regulations define sexual orientation in terms of an orientation towards persons of the same sex, the opposite sex or both. In other words, discrimination or harassment on the grounds that a person is gay, heterosexual or bisexual will be unlawful, while discrimination according to a person's sexual preferences irrespective of gender will not. There is, therefore, no protection against discrimination on the grounds of particular sexual practices or fetishes. For example, a man who has been discriminated against because he enjoys sado-masochism would not be covered because it does not relate to his orientation viz a viz persons of the same or the opposite sex. Nor can it be argued that "orientation" towards children brings a paedophile within the scope of the Regulations.

Discrimination is prohibited if it is "on the grounds of sexual orientation" but not necessarily on the grounds of the victim's sexual orientation. This would extend therefore to cover perceived as well as actual sexual orientation and so refusal to employ on the grounds that an employer thought that the applicant was a lesbian could amount to discrimination even if she was not a lesbian. The complainant would not need to disclose her actual orientation.

Further, there is no requirement that the orientation be actively pursued; discrimination against non-practising homosexuals is unlawful in the same way as discrimination against practising homosexuals.

The Regulations do provide for limited circumstances in which direct discrimination will be allowed, where a genuine occupational requirement (GOR) exists. Where such a requirement exists, an employer may dismiss or refuse to employ, promote, transfer or train an individual if he or she does not meet the GOR or the employer is not satisfied on reasonable grounds that the individual meets the GOR.

A general GOR exists where an employer can show that having regard to the nature of the work, a particular sexual orientation is a genuine and determining occupational requirement and that it is proportionate to apply the requirement. Commentators have suggested that this provision may apply to jobs that involve counselling or other support services related to sexual matters but it is hard to think of other circumstances. Even in those limited circumstances an employer would have to show that there was no way of redistributing the workload to obviate the...

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