About the Employment
Equality (Sexual Orientation) Regulations 2003
From 1 Dec 03, when the Employment Equality
(Sexual Orientation)
Regulations came into force, it is unlawful to discriminate
against workers
because of sexual orientation. These regulations apply equally to the
Armed Forces. Full details of the Regulations, and the specifics
of military application, can be read in the legislation
section.
Fairness at work and good job performance
go hand in hand. Tackling discrimination helps to
attract, motivate and retain staff and enhances an organisation’s
reputation as an employer. Eliminating discrimination helps
everyone to have an equal opportunity to work and to develop their
skills. Legislation
to protect people against discrimination on the grounds
of sex, race, disability and gender reassignment was already
in
place by 2003; after the the Employment
Equality (Sexual Orientation) Regulations it was also illegal for
discrimination on the grounds of an individual being lesbian,
gay or bisexual, or heterosexual.
MOD/Services' harassment complaints procedures
include sexuality-based cases
JSP
763 — the MOD Harassment Complaints Procedure came
into effect on 1 April 05. The JSP contains a definition of harassment,
which includes bullying, and information about the legal aspects
of harassment. It also sets out sources of help for complainants
and respondents and explains how a formal complaint should be
made. Where a formal investigation is commissioned, the JSP contains
a principles-based approach to carrying out this investigation
and detailed guidance for deciding officers in considering and
acting on the outcome. Finally, the avenues of appeal for anyone
dissatisfied with the handling of a complaint are spelt out
Summary of key regulations
It is unlawful on the grounds sexual
orientation to:
discriminate directly against anyone - that is,
to treat them less favourably
than others because of their actual or perceived sexual orientation;
discriminate
indirectly against anyone - that is, to apply a criterion, provision
or
practice which disadvantages people of a particular sexual orientation unless
it can be objectively justified.
subject someone to harassment. Harassment 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
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 on grounds of sexual orientation;
discriminate against someone,
in certain circumstances, after the working relationship has ended.
Definition of direct discrimination
Preventing direct discrimination means that
workers or job applicants must not be treated less favourably because
of their sexual
orientation or their perceived sexual orientation. For
example it is unlawful, on the basis of someone being a known or
suspected lesbian, gay, bisexual or heterosexual, to:
• decide not to employ someone,
• dismiss them
• refuse to provide them with training
• deny them promotion
• give them adverse terms and conditions
• deny them access to benefits available to individuals of a different sexual orientation (unless the benefits are dependent on marital
status)
Definition of indirect discrimination
Indirect discrimination means that an organisation
must not have selection
criteria, policies, benefits, employment rules or any other practices
which, although they are applied to all employees, have the effect
of disadvantaging people of a particular sexual orientation unless the
practice can be justified by a legitimate aim and that proportionality
to that aim (i.e. necessary, and there
is no alternative means available). Otherwise indirect
discrimination is unlawful whether it is intentional or not.
Harassment and bullying
Harassment includes behaviour that is offensive,
frightening or in any way distressing. It may be intentional
bullying which is obvious or violent, but it can also
be unintentional, subtle and insidious. It may involve
nicknames, teasing, name calling or other behaviour which is not
with malicious intent but which is upsetting. It may be about the individual’s
sexual orientation (real or perceived) or it may be about the sexual
orientation (real or perceived) of those with whom the individual associates.
It may not be targeted at an individual(s) but consist of a general
culture which, for instance, appears to tolerate the telling of homophobic jokes.
Victimisation
Victimisation is when an individual is treated detrimentally
because they have made a complaint or intend to make
a complaint about discrimination or harassment or have given evidence
or intend to
give
evidence relating to a complaint about discrimination or
harassment. They may become labelled ‘troublemaker’,
denied
promotion or training, or be ‘sent to Coventry’ by their
colleagues. If
this happens or if organisations fail to take reasonable steps to
prevent
it from happening, they will be liable and may be ordered to pay
compensation. Individuals who victimise may also be ordered to pay
compensation.
Disclosure of sexual orientation
In cases of harassment
on grounds of sexual orientation, does it matter if the harassers
are mistaken
about
their
victim's
sexuality? Does the victim have to disclose their sexual orientation?
No. The harassment can relate to a person's actual
or perceived sexual orientation, even where the perception is wrong
- for example, where an individual is harassed because they are
perceived to be gay, but are in fact heterosexual.
The individual would not be required to disclose their actual sexual
orientation to bring a claim. It will be enough that they have been
harassed because of assumptions made about their sexual orientation.
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