2003 Sexual Orientation Regulations - Part II

DISCRIMINATION IN EMPLOYMENT AND VOCATIONAL TRAINING

Applicants and employees

     6.  - (1) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person - 

(a) in the arrangements he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(c) by refusing to offer, or deliberately not offering, him employment.

    (2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Britain, to discriminate against that person - 

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment.

    (3) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to subject to harassment a person whom he employs or who has applied to him for employment.

    (4) Paragraph (2) does not apply to benefits of any description if the employer is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless - 

(a) that provision differs in a material respect from the provision of the benefits by the employer to his employees; or

(b) the provision of the benefits to the employee in question is regulated by his contract of employment; or

(c) the benefits relate to training.

    (5) In paragraph (2)(d) reference to the dismissal of a person from employment includes reference - 

(a) to the termination of that person's employment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment is renewed on the same terms; and

(b) to the termination of that person's employment by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer.

Exception for genuine occupational requirement etc
     7.  - (1) In relation to discrimination falling within regulation 3 (discrimination on grounds of sexual orientation) - 

(a) regulation 6(1)(a) or (c) does not apply to any employment;

(b) regulation 6(2)(b) or (c) does not apply to promotion or transfer to, or training for, any employment; and

(c) regulation 6(2)(d) does not apply to dismissal from any employment,

where paragraph (2) or (3) applies.

    (2) This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out - 

(a) being of a particular sexual orientation is a genuine and determining occupational requirement;

(b) it is proportionate to apply that requirement in the particular case; and

(c) either - 


(i) the person to whom that requirement is applied does not meet it, or

(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it,

and this paragraph applies whether or not the employment is for purposes of an organised religion.

    (3) This paragraph applies where - 

(a) the employment is for purposes of an organised religion;

(b) the employer applies a requirement related to sexual orientation - 


(i) so as to comply with the doctrines of the religion, or

(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and

(c) either - 

(i) the person to whom that requirement is applied does not meet it, or

(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

Contract workers
     8.  - (1) It is unlawful for a principal, in relation to contract work at an establishment in Great Britain, to discriminate against a contract worker - 

(a) in the terms on which he allows him to do that work;

(b) by not allowing him to do it or continue to do it;

(c) in the way he affords him access to any benefits or by refusing or deliberately not affording him access to them; or

(d) by subjecting him to any other detriment.

    (2) It is unlawful for a principal, in relation to contract work at an establishment in Great Britain, to subject a contract worker to harassment.

    (3) A principal does not contravene paragraph (1)(b) by doing any act in relation to a contract worker where, if the work were to be done by a person taken into the principal's employment, that act would be lawful by virtue of regulation 7 (exception for genuine occupational requirement etc).

    (4) Paragraph (1) does not apply to benefits of any description if the principal is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public to which the contract worker in question belongs, unless that provision differs in a material respect from the provision of the benefits by the principal to his contract workers.

    (5) In this regulation - 

"principal" means a person ("A") who makes work available for doing by individuals who are employed by another person who supplies them under a contract made with A;

"contract work" means work so made available; and

"contract worker" means any individual who is supplied to the principal under such a contract.

Meaning of employment and contract work at establishment in Great Britain
     9.  - (1) For the purposes of this Part ("the relevant purposes"), employment is to be regarded as being at an establishment in Great Britain if the employee - 

(a) does his work wholly or partly in Great Britain; or

(b) does his work wholly outside Great Britain and paragraph (2) applies.

    (2) This paragraph applies if - 

(a) the employer has a place of business at an establishment in Great Britain;

(b) the work is for the purposes of the business carried on at that establishment; and

(c) the employee is ordinarily resident in Great Britain - 


(i) at the time when he applies for or is offered the employment, or

(ii) at any time during the course of the employment.

    (3) The reference to "employment" in paragraph (1) includes - 

(a) employment on board a ship only if the ship is registered at a port of registry in Great Britain, and

(b) employment on an aircraft or hovercraft only if the aircraft or hovercraft is registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Great Britain.

    (7) This regulation applies in relation to contract work within the meaning of regulation 8 as it applies in relation to employment; and, in its application to contract work, references to "employee", "employer" and "employment" are references to (respectively) "contract worker", "principal" and "contract work" within the meaning of regulation 8.

Office-holders etc
     10.  - (1) It is unlawful for a relevant person, in relation to an appointment to an office or post to which this regulation applies, to discriminate against a person - 

(a) in the arrangements which he makes for the purpose of determining to whom the appointment should be offered;

(b) in the terms on which he offers him the appointment; or

(c) by refusing to offer him the appointment.

    (2) It is unlawful, in relation to an appointment to an office or post to which this regulation applies and which is an office or post referred to in paragraph (8)(b), for a relevant person on whose recommendation (or subject to whose approval) appointments to the office or post are made, to discriminate against a person - 

(a) in the arrangements which he makes for the purpose of determining who should be recommended or approved in relation to the appointment; or

(b) in making or refusing to make a recommendation, or giving or refusing to give an approval, in relation to the appointment.

    (3) It is unlawful for a relevant person, in relation to a person who has been appointed to an office or post to which this regulation applies, to discriminate against him - 

(a) in the terms of the appointment;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit, or by refusing to afford him any such opportunity;

(c) by terminating the appointment; or

(d) by subjecting him to any other detriment in relation to the appointment.

    (4) It is unlawful for a relevant person, in relation to an office or post to which this regulation applies, to subject to harassment a person - 

(a) who has been appointed to the office or post;

(b) who is seeking or being considered for appointment to the office or post; or

(c) who is seeking or being considered for a recommendation or approval in relation to an appointment to an office or post referred to in paragraph (8)(b).

    (5) Paragraphs (1) and (3) do not apply to any act in relation to an office or post where, if the office or post constituted employment, that act would be lawful by virtue of regulation 7 (exception for genuine occupational requirement etc); and paragraph (2) does not apply to any act in relation to an office or post where, if the office or post constituted employment, it would be lawful by virtue of regulation 7 to refuse to offer the person such employment.

    (6) Paragraph (3) does not apply to benefits of any description if the relevant person is concerned with the provision (for payment or not) of benefits of that description to the public, or a section of the public to which the person appointed belongs, unless - 

(a) that provision differs in a material respect from the provision of the benefits by the relevant person to persons appointed to offices or posts which are the same as, or not materially different from, that which the person appointed holds; or

(b) the provision of the benefits to the person appointed is regulated by the terms and conditions of his appointment; or

(c) the benefits relate to training

    (7) In paragraph (3)(c) the reference to the termination of the appointment includes a reference - 

(a) to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions; and

(b) to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that he is entitled to terminate the appointment without notice by reason of the conduct of the relevant person.

    (8) This regulation applies to - 

(a) any office or post to which persons are appointed to discharge functions personally under the direction of another person, and in respect of which they are entitled to remuneration; and

(b) any office or post to which appointments are made by (or on the recommendation of or subject to the approval of) a Minister of the Crown, a government department, the National Assembly for Wales or any part of the Scottish Administration,

but not to a political office or a case where regulation 6 (applicants and employees), 8 (contract workers), 12 (barristers), 13 (advocates) or 14 (partnerships) applies, or would apply but for the operation of any other provision of these Regulations.

    (9) For the purposes of paragraph (8)(a) the holder of an office or post - 

(a) is to be regarded as discharging his functions under the direction of another person if that other person is entitled to direct him as to when and where he discharges those functions;

(b) is not to be regarded as entitled to remuneration merely because he is entitled to payments - 


(i) in respect of expenses incurred by him in carrying out the functions of the office or post, or

(ii) by way of compensation for the loss of income or benefits he would or might have received from any person had he not been carrying out the functions of the office or post.

Police
     11.  - (1) For the purposes of this Part, the holding of the office of constable shall be treated as employment - 

(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;

(b) by the police authority as respects any act done by it in relation to a constable or that office.

    (2) For the purposes of regulation 22 (liability of employers and principals) - 

(a) the holding of the office of constable shall be treated as employment by the chief officer of police (and as not being employment by any other person); and

(b) anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

    (3) There shall be paid out of the police fund - 

(a) any compensation, costs or expenses awarded against a chief officer of police in any proceedings brought against him under these Regulations, and any costs or expenses incurred by him in any such proceedings so far as not recovered by him in the proceedings; and

(b) any sum required by a chief officer of police for the settlement of any claim made against him under these Regulations if the settlement is approved by the police authority.

    (4) Any proceedings under these Regulations which, by virtue of paragraph (1), would lie against a chief officer of police shall be brought against the chief officer of police for the time being or, in the case of a vacancy in that office, against the person for the time being performing the functions of that office; and references in paragraph (3) to the chief officer of police shall be construed accordingly.

    (5) A police authority may, in such cases and to such extent as appear to it to be appropriate, pay out of the police fund - 

(a) any compensation, costs or expenses awarded in proceedings under these Regulations against a person under the direction and control of the chief officer of police;

(b) any costs or expenses incurred and not recovered by such a person in such proceedings; and

(c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.

    (6) Paragraphs (1) and (2) apply to a police cadet and appointment as a police cadet as they apply to a constable and the office of constable.

    (7) Subject to paragraph (8), in this regulation - 

"chief officer of police" - 

(a) in relation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as in the Police Act 1996[13],

(b) in relation to a person appointed, or an appointment falling to be made, under section 9(1)(b) or 55(1)(b) of the Police Act 1997[14] (police members of the National Criminal Intelligence Service and the National Crime Squad) means the Director General of the National Criminal Intelligence Service or, as the case may be, the Director General of the National Crime Squad,

(c) in relation to a person appointed, or an appointment falling to be made, under the Police (Scotland) Act 1967[15], means the chief constable of the relevant police force,

(d) in relation to any other person or appointment means the officer or other person who has the direction and control of the body of constables or cadets in question;

"police authority" - 

(a) in relation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as in the Police Act 1996,

(b) in relation to a person appointed, or an appointment falling to be made, under section 9(1)(b) or 55(1)(b) of the Police Act 1997, means the Service Authority for the National Criminal Intelligence Service or, as the case may be, the Service Authority for the National Crime Squad,

(c) in relation to a person appointed, or an appointment falling to be made, under the Police (Scotland) Act 1967, has the meaning given in that Act,

(d) in relation to any other person or appointment, means the authority by whom the person in question is or on appointment would be paid;

"police cadet" means any person appointed to undergo training with a view to becoming a constable;

"police fund" - 

(a) in relation to a chief officer of police within sub-paragraph (a) of the above definition of that term, has the same meaning as in the Police Act 1996,

(b) in relation to a chief officer of police within sub-paragraph (b) of that definition, means the service fund established under section 16 or (as the case may be) section 61 of the Police Act 1997,

(c) in any other case means money provided by the police authority; and

"specified Act" means the Metropolitan Police Act 1829[16], the City of London Police Act 1839[17] or the Police Act 1996.

    (8) In relation to a constable of a force who is not under the direction and control of the chief officer of police for that force, references in this regulation to the chief officer of police are references to the chief officer of the force under whose direction and control he is, and references in this regulation to the police authority are references to the relevant police authority for that force.

Qualifications bodies
     16.  - (1) It is unlawful for a qualifications body to discriminate against a person - 

(a) in the terms on which it is prepared to confer a professional or trade qualification on him;

(b) by refusing or deliberately not granting any application by him for such a qualification; or

(c) by withdrawing such a qualification from him or varying the terms on which he holds it.

    (2) It is unlawful for a qualifications body, in relation to a professional or trade qualification conferred by it, to subject to harassment a person who holds or applies for such a qualification.

    (3) Paragraph (1) does not apply to a professional or trade qualification for purposes of an organised religion where a requirement related to sexual orientation is applied to the qualification so as to comply with the doctrines of the religion or avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.

    (4) In this regulation - 

"qualifications body" means any authority or body which can confer a professional or trade qualification, but it does not include -

(a) an educational establishment to which regulation 20 (institutions of further and higher education) applies, or would apply but for the operation of any other provision of these Regulations, or

(b) a school;

"confer" includes renew or extend;

"professional or trade qualification" means any authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular profession or trade;

"profession" and "trade" have the same meaning as in regulation 15.

Providers of vocational training
     17.  - (1) It is unlawful, in relation to a person seeking or undergoing training which would help fit him for any employment, for any training provider to discriminate against him - 

(a) in the terms on which the training provider affords him access to any training;

(b) by refusing or deliberately not affording him such access;

(c) by terminating his training; or

(d) by subjecting him to any other detriment during his training.

    (2) It is unlawful for a training provider, in relation to a person seeking or undergoing training which would help fit him for any employment, to subject him to harassment.

    (3) Paragraph (1) does not apply if the discrimination only concerns training for employment which, by virtue of regulation 7 (exception for genuine occupational requirement etc), the employer could lawfully refuse to offer the person seeking training.

    (4) In this regulation - 

"training" includes -

(a) facilities for training; and

(b) practical work experience provided by an employer to a person whom he does not employ;

"training provider" means any person who provides, or makes arrangements for the provision of, training which would help fit another person for any employment, but it does not include - 

(a) an employer in relation to training for persons employed by him;

(b) an educational establishment to which regulation 20 (institutions of further and higher education) applies, or would apply but for the operation of any other provision of these Regulations; or

(c) a school.

Relationships which have come to an end
     21.  - (1) In this regulation a "relevant relationship" is a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship ("B") by the other party to it ("A") is unlawful by virtue of any preceding provision of this Part.

    (2) Where a relevant relationship has come to an end, it is unlawful for A - 

(a) to discriminate against B by subjecting him to a detriment; or

(b) to subject B to harassment,

where the discrimination or harassment arises out of and is closely connected to that relationship.

    (3) In paragraph (1), reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before the coming into force of these Regulations, reference to an act of discrimination or harassment which would, after the coming into force of these Regulations, be unlawful.

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Notes:

[5] 1964 c. 29.back

[6] 1985 c. 6.back

[7] 1958 c. 21.back

[8] 1975 c. 24; Schedule 2 was amended by the Scotland Act 1998 (c. 46), sections 48(6) and 87(1) and Schedule 9, and by S.I. 2002/794.back

[9] 1975 c. 27.back

[10] 1998 c. 46.back

[11] 1994 c. 39; section 2 was amended by the Environment Act 1995 (c. 25), Schedule 22, paragraph 232(1).back

[12] 1973 c. 65; section 51 was amended by the Local Government etc (Scotland) Act 1994 (c. 39), Schedule 14, paragraph 1.back

[13] 1996 c. 16.back

[14] 1997 c. 50.back

[15] 1967 c. 77.back

[16] 1829 c. 44.back

[17] 2 & 3 Vict c. xciv.back

[18] 1907 c. 24.back

[19] 1890 c. 39.back

[20] 1973 c. 50; section 2 was substituted by section 25(1) of the Employment Act 1988 (c. 19), and amended by the Employment Act 1989 (c. 38), Schedule 7, Part 1, and by section 47(1) of the Trade Union and Employment Rights Act 1993 (c. 19).back

[21] 1990 c. 35.back

[22] 1992 c. 13.back

[23] 1992 c. 37.back

[24] 1980 c. 44.back

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