Stay on right side of sex law

Last December marked the two-year anniversary of the introduction of the Civil Partnership Act 2004 (CPA). This groundbreaking law enabled same sex couples to enter into a civil partnership, thereby providing legal recognition of the relationship.

Running alongside the CPA are the Employment Equality (Sexual Orientation) Regulations 2003 which have been in force since 1 December 2003. The SO Regulations prohibit discrimination against employees in the workplace on the grounds of their sexual orientation.

The CPA is still in its infancy and therefore there is little case law guidance. However, ACAS recently conducted research into the impact of the SO Regulations and found that:

• Between January 2004 and September 2006, 470 individuals brought employment tribunal claims where the main allegation related to discrimination on the grounds of sexual orientation;

• Two-thirds of those claims were brought by men; and

• The sexual orientation claims were dominated by bullying and harassment allegations

ACAS found that allegations included name calling, verbal threats, intimidation and even physical abuse and sexual harassment by colleagues. Many employees alleged that they had been disciplined or dismissed after raising a grievance relating to their treatment by colleagues, or were forced to resign due to their treatment.

Many employees alleged that they had been disciplined or dismissed after raising a grievance relating to their treatment by colleagues, or were forced to resign due to their treatment

If an employee does bring a tribunal claim then compensation for discrimination on the grounds of sexual orientation is unlimited. Employers can be vicariously liable for the actions of an employee, and therefore cannot simply defend any allegation on the basis that it was not done with their knowledge or authority.

Bullying and harassment (of any nature) also causes considerable upset and distress for the particular employee that it is directed at but can also cause tensions amongst other staff. Such issues are not conducive to an effective working environment.

Top tips for employers
There remains much ambiguity about the SO Regulations and the CPA and, until there is significantly more case law to clarify these, employers should:

• Ensure that they have an effective equal opportunity policy in place;

• Ensure that all employees are aware of the contents of that policy and of the applicable law so that they are aware of their rights and obligations. Failure by a line manager, for example, to identify and deal with an issue protected by the SO Regulations, due to their ignorance of the applicable laws, will not protect an employer against any legal proceedings;

• Provide training to employees, particularly the managers and senior employees who may have to identify issues or deal with grievances/disciplinary matters based on complaints relating to sexual orientation;

• Have a zero tolerance attitude towards any bullying and harassment, particularly if based on sexual orientation (or any other forms of discrimination);

• Be aware of the rights of civil partners of employees, who should be treated in the same way (particularly in relation to benefits) as married partners of employees. (For the purposes of this article any reference to civil partners means only civil partners who have registered under the CPA);

• Consider their policies in respect of any benefits which are given to spouses of married employees and amend those policies accordingly to take into account the rights of civil partners;

• Seek professional advice as to whether they need to modify the rules of their occupational pension schemes to ensure that civil partner survivors are included;

• Consider their family-friendly policies, as civil partners will be entitled to the same family friendly arrangement as married couples are entitled to; and

• Try to avoid making people identify themselves as civil partners or of a particular sexual orientation, unless absolutely necessary