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The Employment Equality (Sexual Orientation) Regulations (NI) 2003 (the SO Regs 03) make it unlawful for employers and others to discriminate on grounds of sexual orientation in the areas of employment, vocational training and further and higher education. The Equality Act (Sexual Orientation) Regulations (NI) 2006 (the SO Regs 06) extend the protection against discrimination to the provision of goods, facilities and services, the management and disposal of land or premises and the provision of education in schools.
What is sexual orientation discrimination?
Scope of Employment Protection
Liability of Employers
Goods, Facilities and Services
Land and Premises
Other Unlawful Acts
Exemption for Religious Organisations
Enforcement of SO Regs Employment Complaints
Enforcement of Other SO Regs Complaints
Discrimination is not simply unfairness. To be discriminated against means to be treated less favourably than others. Sexual orientation discrimination is discrimination against people because they either have or are perceived to have a particular sexual orientation. It is unlawful to discriminate against people because they are gay or lesbian, bisexual or heterosexual (straight). The SO Regs also cover individuals who are treated less favourably than others based on incorrect assumptions about their sexual orientation and individuals who are treated less favourably because they are associated with people of a particular sexual orientation.
The SO Regs outline four types of discrimination.
1. Direct discrimination is where someone is treated or would be treated less favourably than others in the same or similar circumstances and the reason for that treatment is sexual orientation.
The best candidate at interview was not offered a job because the employer suspected he was gay, whilst a less able candidate who the employer believed to be straight was offered the post.
2. Indirect discrimination
There are two definitions of indirect discrimination:
2a. Indirect discrimination exists where a provision, criterion or practice is applied which puts people of a particular sexual orientation at a disadvantage and which cannot be shown to be a proportionate means of achieving a legitimate aim.
2b. There is an alternative definition of indirect discrimination under the SO Regs 06. Indirect discrimination occurs when a requirement or condition is applied which only a considerably smaller proportion of people of the same sexual orientation can comply with, which is not justifiable and which is to the complainant´s detriment because s/he cannot comply with it.
The definition of indirect discrimination given in 2a applies to employment, vocational training, further and higher education, the provision of goods, facilities and services, the management and disposal of land or premises and the provision of education.
The definition of indirect discrimination given in 2a and 2b applies to the provision of goods, facilities and services, the management and disposal of land or premises and the provision of education.
A female applicant who is a lesbian applies for a high profile job with an international company. She is well qualified and experienced for the post. The employer informs her that part of the recruitment exercise includes an interview with her partner, as partners are considered to play an important social role at work related events. The female applicant refuses to disclose details about her partner on the grounds that the information is private. Shortly afterwards she is informed that her application has been unsuccessful.
If the employer failed to appoint her because they suspected she was a lesbian, this is likely to amount to direct discrimination on the grounds of sexual orientation. If they failed to appoint her because she refused to disclose details about her partner, she may also be able to argue that she had been indirectly discriminated against. She could possibly argue that people who are gay, lesbian or bisexual would be less willing to provide information about their partners than people who are heterosexual.
If a requirement to disclose details of their partners is considered by a tribunal to place lesbians at a particular disadvantage, the employer would have to objectively justify such a requirement.
3. Victimisation means treating someone less favourably than others because they have complained of discrimination on the grounds of sexual orientation or assisted someone else to do so.
An employee is dismissed because she has made an allegation of sexual orientation discrimination. Provided the allegation was made in good faith and is not false, she has been victimised contrary to the SO Regs.
4. Harassment is unwanted conduct which has the purpose or effect of violating an individual´s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Harassment takes place where, taking into account all the circumstances including in particular the perception of the person who has been harassed, the harasser´s conduct should reasonably be considered as having violated a person´s dignity or created such an environment for him/her.
Harassment might include name calling, isolating gay, lesbian or bisexual employees or using a feminine pronoun for a gay man.
People who believe that they may have suffered unlawful discrimination on grounds of sexual orientation may take legal action through an industrial tribunal or county court.
The SO Regs apply to all employers regardless of size. They make it unlawful for employers to discriminate against employees and job applicants on the grounds of sexual orientation. It is unlawful for an employer to discriminate:
- in recruitment and selection including arrangements for deciding who should be offered employment, in the terms on which employment is offered, or by refusing or deliberately omitting to offer a person employment;
- in the terms and conditions of employment;
- in relation to access to benefits, including opportunities for promotion, transfer, training or any other benefits, or the refusal of those opportunities; and
- by dismissing an employee or causing him/her any other detriment.
It is also unlawful for an employer to harass an employee or a job applicant on the grounds of sexual orientation.
The SO Regs apply to all employees regardless of how long they have been employed by their employer. Agency workers and office holders are also covered by the SO Regs. In addition, in certain circumstances, former employees will have rights under the SO Regs. For example, it will be unlawful for an employer to refuse to provide a work reference for a former employee because he/she did not approve of the ex-employee´s sexual orientation.
The SO Regs also apply to the following:
- vocational organisations, for example, trade unions and professional bodies;
- employment agencies;
- bodies that confer qualifications;
- providers of vocational training;
- contract workers;
- police and police bodies;
- trustees and managers of occupational pension schemes;
- office holders; and
- institutions of further and higher education.
The SO Regs cover sexual orientation discrimination in employment in Northern Ireland if the employee does his/her work wholly or partly in Northern Ireland;
Does his/her work wholly outside NI and:
- the employer has a place of business at an establishment in NI;
- the work is for the purposes of the business carried on at the establishment; and
- the employee is ordinarily resident in NI at the time when s/he applies for or is offered the employment or at any time during the course of the employment.
Employers are liable for acts of discrimination committed by their employees in the course of their employment whether or not the acts were done with the employer´s knowledge or approval, unless the employer can show that s/he took such steps as were reasonably practicable to prevent the discrimination occurring.
In very limited circumstances, an employer or training provider can treat a job applicant or trainee differently on grounds of sexual orientation if possessing a particular sexual orientation is a genuine occupational requirement for that post. This exception applies when recruiting, promoting, transferring or training people for a post in respect of which a genuine occupational requirement applies. Should an employer wish to recruit a person of a particular sexual orientation, then the onus is on them to show that having a particular sexual orientation is a genuine and determining occupational requirement and that it is proportionate to apply that requirement in the circumstances of that particular case.
A small organization is formed in order to provide advice and support to members of the gay, lesbian and bisexual community. They decide to recruit a part-time counsellor whose primary role is to provide a counselling service to members of that community. In its advert, the organisation indicates that the successful candidate must be gay, lesbian or bisexual.
The organisation seeks to rely on a genuine occupational requirement exception in relation to the post. It states that there is an identifiable need for the counsellor to be gay, lesbian or bisexual. They claim that due to its size and resources it has no other employees who are gay, lesbian or bisexual who are capable of carrying out the counselling duties in question. In those circumstances, the organisation is likely to be able to rely on the genuine occupational requirement exception.
Where employment is for the purposes of an organised religion, the SO Regs contain an additional exemption. If the religious body or organisation does not wish to recruit people of a particular sexual orientation, then they will need to establish that this is necessary to comply with the doctrines of the religion. Alternatively they will need to show that because of the nature of the work and the context in which it is carried out, the requirement is necessary to avoid conflicting with a significant number of the religion´s followers strongly held religious convictions.
A gay Christian man wishes to become a priest in the Catholic Church. However, as the Catholic Church considers that homosexual acts are immoral and in order to comply with the religious doctrines of that faith, the Church refuses to allow him to train as a priest.
It is unlawful for people who provide training to help fit others for employment to discriminate against them in relation to such training. The SO Regs cover:
- the terms on which the training provider offers access to training;
- refusing or deliberately not offering access;
- terminating training; or
- any other detriment during training.
It is also unlawful for a training provider to subject a person seeking or undergoing training to harassment. Training in this context also includes the use of facilities for training and practical work experience provided by an employer for people who are not that organisation´s employees. However training providers can refuse to offer training on grounds of sexual orientation if the training is for employment where a particular sexual orientation is a genuine occupational requirement.
Schools, colleges and other educational establishments cannot discriminate on grounds of sexual orientation. It is unlawful to discriminate:
- as regards terms of admission to the establishment;
- by refusing or deliberately omitting to accept an application for admission;
- in the way a pupil or student in the establishment is afforded access to any benefits, facilities of services, or by refusing or deliberately omitting to afford such access; or
- by excluding a pupil or student from the establishment or treating such a pupil or student unfavourably in any other way.
It is also unlawful to harass, on the grounds of sexual orientation, a pupil or student who is at or seeking admission to the establishment.
The SO Regs place a general duty on education and library boards and other bodies responsible for educational establishments in the public sector to ensure that educational facilities are provided without discrimination on the grounds of sexual orientation.
The SO Regs outlaw discrimination and harassment on the grounds of sexual orientation in the provision of goods, facilities and services which are available to the public or a section of the public. This includes refusal of a service or the provision of a lower standard of service. Discrimination of this kind is unlawful whether the service provided is paid for or not.
- access to and use of any place which members of the public are permitted to enter;
- accommodation in a hotel, boarding house or other similar establishment;
- facilities by way of banking or insurance or for grants, loans, credit or finance;
- facilities for education;
- facilities for entertainment, recreation or refreshment;
- facilities for transport or travel; and
- the services of any profession or trade, or any local or other public authority.
The SO Regs apply to discrimination by those who provide goods, facilities and services to the public and does not apply where the transaction is of a purely private nature, for example, entertainment or refreshment provided to members of a genuinely private small club.
It is unlawful for a public authority to discriminate against a person on the grounds of his/her sexual orientation, or to subject a person to harassment, in the course of carrying out any functions of the authority. Such functions include the provision of any form of social security, healthcare, social protection or any form of social advantage.
It is unlawful for anyone selling or managing property or premises to discriminate against a person on the grounds of their sexual orientation. For example it would be unlawful for a landlord to refuse to rent to or to evict someone because they are of a particular sexual orientation. It is also unlawful for a landlord to harass a tenant or prospective tenant on the grounds of their sexual orientation. However, there are exceptions in relation to small dwellings where the landlord occupies the premises.
The SO Regs also make it unlawful to apply discriminatory practices, publish discriminatory advertisements, instruct or put pressure on a person to do anything contrary to the SO Regs by discriminating in employment or other fields, or to knowingly aid another person to carry out such acts.
In certain circumstances it is unlawful to discriminate against or harass a person, on the grounds of sexual orientation where the relevant relationship (eg, an employment relationship) has come to an end and where the discrimination or harassment arises out of and is closely connected to that relationship.
The SO Regs provide exemptions for religious organisations whose main purpose is to practice, advance or teach a religion or belief or to enable people of a religion or belief to receive a benefit or to engage in an activity, within the framework of that religion or belief. This exemption does not apply to organisations with a commercial purpose or to educational bodies.
There are exceptions to the general principle of discrimination on the grounds of sexual orientation and the SO Regs exempt:
- acts done to safeguard national security, or to protect public safety or public order;
- acts done under statutory authority;
- acts done which prevent or restrict access to a benefit by reference to marital status (Note that persons in civil partnerships are protected in the same way as married persons.);
- recruitment, promotion, transfer or training of a person for a post in respect of which a genuine occupational requirement applies;
- benefits conferred by charities on members of a particular sexual orientation; and
- acts which relate to the provision of accommodation in or disposal of small premises.
Employers, training bodies and trade organizations can take positive action in certain circumstances, to counteract the effect of disadvantage against members of the gay, lesbian and bisexual communities. The positive action should prevent or compensate for disadvantages linked to sexual orientation. The disadvantage may be that persons of a particular sexual orientation are under-represented or it may be that there is evidence of harassment or homophobic attitudes. Examples of positive action measures include encouraging gay, lesbian or bisexual people to take advantage of opportunities for doing particular work; placing advertisements in the press welcoming gay, lesbian and bisexual people; or offering training facilities in the workplace aimed at combating disadvantage.
Complaints of discrimination in employment or vocational training under the SO Regs must be made within 3 months of the date on which the act of discrimination was done.
Complaints are dealt with by an industrial tribunal.
Where a tribunal decides in favour of the complainant, it may award such of the following remedies as it considers just and equitable:-
- an order declaring the rights of the parties;
- an order requiring the respondent to pay compensation to the complainant;
- a recommendation that the respondent takes remedial action to obviate or reduce the discrimination or the adverse effect on a person other than the complainant.
In industrial tribunal proceedings, each party will normally pay its own costs although the tribunal may award costs against either party in certain circumstances. In particular, if a tribunal considers a party has acted unreasonably or that a party´s action in bringing the proceedings has been misconceived, the Tribunal may award costs against that party. The maximum costs the Tribunal can award against a party are £10,000. In practice awards of costs are much lower than this and the Tribunal will take into account the Claimant´s ability to pay.
There is a right of appeal on a point of law to the Court of Appeal against a decision of an industrial tribunal.
Complaints in respect of education, premises and in the provision of goods, facilities and services or where an employment relationship has come to an end are made to the county court within six months of the date on which the act of discrimination took place.
Where a complaint relates to certain public sector educational establishments there is a requirement to give 2 months notice to the Department of Education and in these circumstances, the time limit is extended from 6 to 8 months.
Where a County Court finds in favour of the complainant, it may award compensation for injury to feelings.
Where the court finds against a party, that party will normally pay their own costs and the costs of the other party.
There is a right of appeal to the Court of Appeal against a decision of a County Court. If leave is granted, a further appeal can be made to the House of Lords.