What the Regulations say?

The Employment Equality (Sexual Orientation) Regulations 2003 SI 1661/2003 outlaw discrimination, victimisation and harassment in the workplace due to a person’s sexual orientation or perceived sexual orientation. The regulations expressly state that sexual orientation is orientation towards persons of the same sex (homosexual), persons of the opposite sex (heterosexual) or persons of the same sex and of the opposite sex (bisexual). Although the regulations generally apply to almost all employees, the principle aim is the protection of lesbian, gay or bisexual employees as they are more likely to be the recipient of discrimination, victimisation or harassment as a result of their sexual orientation.

The regulations came into force on 1 December 2003 and since this time employees have been able to bring claims against their employers including potential or former employers; but have the regulations achieved their aim?

What has been the effect of the Regulations?

A very recent, well-publicised survey, conducted by Out Now Consulting revealed that almost 50% of all gay, lesbian or bisexual employees are reluctant to reveal their sexuality at work. However 9% of gay men and 12% of lesbians have claimed that they have suffered from discriminatory treatment at work due to their sexual orientation.

In view of the results of this survey it is perhaps surprising to learn that the Employment Tribunal’s Annual Report for 2004-05 states that only 61 applications were made in the first year of the regulations coming into force (2003-04); and of the 156,081 claims issued in the Employment Tribunal during 2004-05, only 349 applications were claims for discrimination on the grounds of sexual orientation (compared to, for example, sex discrimination for which 11,726 claims were issued in the same period).

Surprisingly, for such new legislation, very few cases involving sexual orientation have been legally reported. However, perhaps unsurprisingly given the scurrilous facts and issues that sometimes arise in such discrimination cases, the popular press have given such cases disproportionate attention. The outcome of these claims gives some indication of the view taken by Tribunals in dealing with such claims.

The Employment Tribunal’s View

The first case to be brought under the regulations for discrimination on the grounds of sexual orientation was Whitfield v Cleanaway UK. Mr Whitfield, a gay office manager stated that he had been subject to homophobic abuse. This abuse included name calling, taunting, being referred to as a “queen”, colleagues saying “hello dear” and being given the nickname “Sebastian” (in reference to the Little Britain character). Mr Whitfield resigned from his job and brought a claim for constructive dismissal and harassment due to his sexual orientation. Mr Whitfield was successful in his claim and the Employment Tribunal awarded him £35,000.

In the case of Mr Whitfield, the employee had been the direct recipient of homophobic abuse. In the case of Whitehead v Brighton Marine Palace and Pier Company Limited Mr Whitehead raised a grievance at work regarding his managers attitude towards him. Shortly after raising the grievance, Mr Whitehead was absent from work due to sickness. On returning from his sick leave, Mr Whitehead was informed by a colleague that his manager had referred to him in a particularly offensive and homophobic manner. Although Mr Whitehead did not hear his manager make this comment, he resigned and successfully brought a claim in the Employment Tribunal for harassment due to his sexual orientation.

Other actions that have been found to constitute harassment under the regulations include affecting a “mincing” walk or pretending to be “limp-wristed” as in Brooks and Findlay Industries UK Limited.

Pressure groups and gay rights groups have supported the regulations since their conception and have, in some cases, supported individuals in bringing claims against their employers. The Equality Commission for Northern Ireland supported a 30 year old gay man who was awarded £6,000 after the Tribunal held that he had been discriminated against by his employer through severe verbal harassment on the grounds of his sexual orientation.

The above cases are indications that Employment Tribunals are prepared to award significant damages against employers in cases where an employee has been discriminated against, harassed or victimised on the grounds of their sexual orientation. This can include one off remarks in office environments, which are often regarded as office “banter” or jovial conduct.

Defusing a Potential Time Bomb

Employers should be concerned that the statistics indicate a large percentage of gay and lesbian employees do not feel comfortable coming out in the workplace. Further, if the statistics are accurate, a significant number of gay and lesbian employees are suffering workplace harassment and discrimination in silence. It is perhaps important to remember that ignorance of a person’s sexual orientation is no defence. Therefore employers cannot rely on the fact that they were not aware of a particular employee’s sexual orientation as a defence to any claim for discrimination.
Although the regulations are still perceived as being relatively new, and the Tribunal statistics are limited, it is clear from the year on year increase in claims between 2003 and 2005 that employees are increasingly willing to enforce their rights. This together with a large number of gay and lesbian employees currently suffering discrimination and harassment in silence could lead to a potential claims time bomb against employers.

A large number of employers including high profile City companies have focused on their policies and have become what is referred to as “gay friendly” employers. Citigroup and Credit Suisse First Boston among others have been praised for their “gay friendly” attitude and policies and have been ranked amongst the best employers for gay and lesbian people.

There is no excuse however why all employers whether large or small cannot adopt similar equality policies and procedures to eradicate discrimination in the workplace, whether it is on the grounds of sexual orientation, or for some other reason. It is often not enough to simply update equal opportunities policies to include new discrimination legislation as it comes into force. Employers who wish to avoid claims against them for discrimination must be robust in pro-actively ensuring that their organisation is free from discrimination, victimisation and harassment through enforcing their policies, being responsive to the needs of their employees and providing training to all employees, especially middle and senior management who often have line management responsibilities for a diverse cross-section of people.