Sexual Orientation Discrimination

On 1 December 2003 the Employment Equality (Sexual Orientation) Regulations 2003 came into force, making it unlawful for employers and some other bodies to discriminate against or harass a person on the ground of sexual orientation. The Government estimates that between 1.3 and 1.9 million gay men, lesbians and bisexuals in employment are most likely to be affected by the Regulations. This IDS Employment Law Supplement explains what the new law means for employers and how it applies in the workplace.

The scheme of the Supplement is as follows:

• Chapter 1 considers what is meant by 'sexual orientation' and explains the different forms of discrimination made unlawful under the Regulations - direct discrimination, indirect discrimination, victimisation and harassment
• Chapters 2 and 3 are concerned with the scope of the Regulations, looking at the employment situations in which they apply, the benefits they cover and the individuals who are protected
• Chapter 4 focuses on liability under the Regulations and discusses the mechanisms by which employers and agents are made liable for the discriminatory acts of their workers and agents. This chapter also examines the circumstances in which workers and agents can themselves be personally liable for such acts
• Chapter 5 is concerned with the genuine occupational requirement exception contained in Reg 7, which allows employers to discriminate against employees and job applicants in certain circumstances where they can show that being of a particular sexual orientation is a genuine occupational requirement for the post in question
• Chapter 6 sets out the general exceptions from liability under the Regulations, including the circumstances in which positive discrimination is permissible
• Chapter 7 deals with the enforcement of, and the remedies for, complaints under the Regulations. It also looks at the difficulties complainants face in proving discrimination.

The Regulations implement the sexual orientation aspects of EC Directive (No.2000/78) establishing a general framework for equal treatment in employment and occupation ('the Framework Directive'), which sets out a framework for eliminating employment or occupational inequalities based on religion, belief, disability, age and sexual orientation. The Regulations apply across Great Britain (England, Scotland and Wales), with separate Regulations - the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 SR 2003/ 497 - applicable in Northern Ireland.

As an aid to understanding the new law, the Department of Trade and Industry (DTI) has introduced guidance on the Regulations, and in addition, Acas has published a practical guide.

The law is stated as at 1 March 2004.