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What Everyone Needs to Know About Gays and Lesbians at Work

The Employment Equality (Sexual Orientation) Regulations came into force on 1 Dec 03. To help make sure that local government employees heard about the new regulations UNISON's LGBT representatives from Devon County Branch and Exeter City Branch produced a newsletter. The Devon County Branch newsletter was sent out along with the Jan 04 issue of Unity.

• Why produce a newsletter?
• Brief summary of the main points of the Regulations
• Two loopholes that still permit discrimination
• How complaints will be dealt with
• FAQs
• What is Devon County Council doing?
  

Why produce a newsletter?

One thing every Devon County Council employee already knows about us is we don't come to work to be lesbians, gays or bisexuals (LGB). We work as secretaries, cleaners, engineers, accountants, carers, teachers, librarians, social workers - you name it we're doing it.

But we've been guarded and silent about our sexuality. It's invisible, lost in the heterosexual culture of the workplace. We've lived invisibly for good reason. Up until 1 Dec 2003 we didn't have the same conditions of service protection.

At last, this situation is hugely improved. The Dec 2003Regulations mean nearly equal protection and conditions of service in every place of work, including ours. The first purpose of the LGBT Group's Campaign newsletter was to help spread the word to every UNISON member, both LGBT and heterosexual, that things had changed.

Secondly, the newsletter asked important questions. 'After December 1st will it just be the relationship with our Employer that the Regulations change?' What about our working relationships with each other? Will those change? After all, having a sociable workplace, feeling comfortable with our colleagues, is an important part of enjoying our jobs.

When will we no longer feel that the only way to be accepted is to be invisible and silent? The fact is, the new Regulations will never be more than mere words on paper if every employee doesn't take them on board (including trades unions), professional bodies, employment agencies, providers of vocational training, and institutions of further and higher education.

Brief summary of the main points of the Regulations

Since 1 Dec 03, Devon County Council:

• Can't refuse to employ someone, or decide to dismiss someone, because of their sexual orientation.
  
  
• Cannot refuse access to training or promotion because of sexual orientation;
  
  
• Must act to protect employees against bullying or harassment because of their sexual orientation.
  
  
• Cannot deny to lesbian, gay or bisexual workers benefits (facilities and services) they offer to heterosexual workers
  
  
• Cannot give an unfair reference when someone leaves, because of their sexual orientation.

By 'sexual orientation' the regulations mean orientation towards people of the same sex, the opposite sex, or both.

In addition, Devon County Council will be liable for discriminatory actions taken by anyone acting on the Council's behalf, whether or not it was done with their knowledge, unless the Council can show that it had tried to prevent such actions.

General exceptions:

An employer may still -

• deny a same sex partner access to a benefit if the employer specifies that the benefit is restricted to married partners only
• discriminate where there is an occupational requirement which is a genuine, determining and proportionate reason for requiring the employee to be of a particular sexual orientation

There is a general exemption for acts done to safeguard national security.

Positive action:

The regulations make it legal for employers and trade associations (such as trade unions) to take steps to encourage people of a particular sexual orientation to apply for particular work or training, if this is to compensate for disadvantages otherwise suffered by people of that sexual orientation.

Definitions:

• Direct discrimination: - less favourable treatment of an individual on grounds of sexual orientation
  
  
• Indirect discrimination: provision, criteria or practice which puts people of a particular sexual orientation at a disadvantage, where this is not a 'proportionate means of achieving a legitimate aim'
  
  
• Harassment: unwanted conduct which has purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Perception of the person complaining of harassment must be taken into account when considering all circumstances and deciding whether harassment can 'reasonably' be considered to have taken place.
  The law protects from discrimination on grounds of sexual orientation - this may be perceived or actual.
  Devon County Council must act to protect employees against bullying or harassment because of their sexual orientation. The perception of the person suffering the harassment is important in defining this.
  The Council cannot deny to lesbian, gay or bisexual workers the benefits (facilities and services) they offer to heterosexual workers, e.g. insurance schemes, travel concessions, social events. This also covers any benefits offered to an employee's same sex partner if such benefits are available to unmarried opposite sex partners;

The regulations also outlaw discrimination by trade associations (including trade unions), professional bodies, employment agencies, providers of vocational training, and institutions of further and higher education.

Two loopholes that still permit discrimination

• Section 25 of the Regulations allows our pension scheme to continue to discriminate against same sex partnerships in favour of opposite sex marriages.
  
  
• Regulation 7 (3) will exempt religious organisations that wish to continue to discriminate against people working for them in a religious capacity.

UNISON and five other powerful unions worked through the TUC to challenge Regulation 7 (3) in the High Court. Although the case was lost UNISON is satisfied with the judgement as it left a very narrow interpretation of which posts are exempt. The narrowness means it is very unlikely that any UNISON member can be lawfully refused employment, or sacked, by a faith employer because they are lesbian or gay.

How complaints will be dealt with

If you have a complaint and your steward is unsure of how to handle it please get in touch. The Branch has a copy of the Regulations (with the LGBT Officer) and it sets out the process, including forms.

Under the Regulations complaints will be heard by Employment Tribunals, (or county courts in England and Wales, if the body complained against is a college). Complaints have to be submitted within 3 months (6 for a county court). Same remedies and rules apply as for other complaints to such bodies.

The person claiming they have been discriminated against may submit a questionnaire to their employer. Appropriate inferences may be drawn from a failure to respond.

The burden of proof lies on the Council to show that they have not broken the law, once the complainant has made a case to show they have been treated differently because of their sexual orientation.

Frequently asked questions

1. Do you have to prove your sexual orientation to take a case?
   
   No - The law protects from discrimination on grounds of sexual orientation - this may be perceived or actual. The Regulations cover eg harassment because someone mistakenly thinks you are gay or because you have lesbian friends.
   
   
2. Do employers now have to monitor their workforce?
   
   No - Monitoring of individual workers is not required by the regulations. The pros and cons of monitoring workers' sexual orientation is a live and contentious issue. This will be covered in the new UNISON negotiating guide.
   
   
3. Do the regulations cover transgender workers?
   
   No - Transgender workers are protected under the Sex Discrimination (Gender Reassignment) Regulations 1999. The UNISON briefing Transgendered People's Rights at Work is stock number 1938, available from UNISON.