Sexuality equality

The Employment Equality (Sexual Orientation) Regulations 2003 outlaw discrimination on grounds of sexual orientation (or a presumed orientation) towards persons of the same sex, opposite sex or towards both and promote equality.

The legislation covers gays, lesbians, heterosexuals and bisexuals but does not cover sexual practices, such as sado-masochism. Transgender people are protected by separate regulations. It also protects those who are subjected to discrimination based on association with, for example, gay friends or colleagues. 

 

The Regulations prohibit direct and indirect discrimination as well as harassment. 

 

Direct discrimination is automatically unlawful unless the employer can establish a  ‘genuine occupational requirement' (GOR) defence. There are two types of GOR. 


 

The first, of general application, is where, having regard to the nature of the employment or the context in which it is carried out, being of a particular sexual orientation is a genuine and determining occupational requirement. The employer also has to show that it is proportionate to apply that requirement in the particular case. 


 

The second type of GOR has the potential to be highly controversial. An employer can use this defence where the employment is   ‘for the purposes of an organised religion'. 

 

The employer may legitimately apply a requirement as to sexual orientation either to comply with the   ‘doctrines of the religion' or because of the nature and content of the employment, so as ‘to avoid conflicting with the strongly-held religious conviction of a significant number of the religion’s followers'. 

 

There is a lack of clarity as to how wide-ranging this defence is. While it will almost certainly cover employment in a church, temple or mosque, it is less clear whether it applies to posts in church schools and religious colleges. 

 

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Harassment covers unwanted conduct violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
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The position is further complicated by the highly-charged debate about gay clergymen in the Church of England. Unlike the first type of GOR, there is no necessity for the employer to show that this is proportionate. This was required by the EU Directive on which the Regulations are based and a consortium of TUC unions is challenging the government on this. 

 

There is one further unhelpful anomaly in the Regulations. While it would be discriminatory for organisations to give benefits to opposite-sex unmarried partners but to deny those same benefits to same-sex partners, it is permissible for an employer to restrict those benefits to individuals who are married. Harassment on grounds of sexual orientation is specifically unlawful. And harassment covers unwanted conduct violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 

 

For some very useful guidance on the application of the The Employment Equality (Sexual Orientation) Regulations 2003, see the Advisory, Conciliation and Arbitration Service website.

Help and support 
For further advice on this issue, ATL members can speak to their school rep, their branch secretary or their regional official. They can also call the London (020 7930 6441), Cardiff (029 2046 5000) or Belfast office (02890 327 990) or email info@atl.org.uk.

For out of hours enquiries, call the out of office hours helpline on 020 7782 1612 (Monday-Friday, 5-8pm during term time).

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