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NEW
RIGHTS FOR ALL LESBIAN, GAY AND BISEXUAL WORKERS
From 1 December 2003 new laws
will come into effect that will make it illegal for any employer to
discriminate because of a worker’s sexuality.
As a result of a new European
law against discrimination, the British government has introduced
regulations that for the very first time in the UK will protect LGB
workers against being treated less favourably than their
heterosexual colleagues. The following briefing is a short summary
of what the new law will cover, and it is published to encourage
workers to understand the new regulations and for unions to bring
them to the attention of employers, with a view to negotiating
effective policies that will be at a minimum compliant with the
regulations.
The draft regulations (called
the Employment Equality (Sexual Orientation) regulations 2003) were
laid before the Houses of Parliament on 8 May and will be voted on
shortly.
WHAT THE LAW WILL COVER
The new law will mean that the
employer
- Cannot refuse to employ
someone, nor can they decide to dismiss someone, because they
are lesbian, gay or bisexual;
- Cannot refuse access to
training, or to promotion, because of sexual orientation;
- Must act to protect
employees against bullying or harassment suffered because of
their sexuality. The perception of the person suffering the
harassment is important in defining this;
- Cannot deny to lesbian,
gay or bisexual workers benefits (facilities and services) they
offer to heterosexual employees (for example, insurance schemes,
travel concessions, social events); the TUC understands that
this should cover any benefits offered to an employee’s
partner (but see the marital status exemption below);
- Cannot give an unfair
reference when someone leaves, because of being lesbian, gay or
bisexual.
WHO THE LAW WILL PROTECT
The new regulations cover:
- all employees and
contract workers based in Great Britain;
- office holders;
- police;
- barristers and
advocates;
- partnerships;
- and the armed forces.
The regulations also outlaw
discrimination by trade associations (including trade unions),
employment agencies, providers of vocational training, and
institutions of further and higher education.
The employer will be liable
for discriminatory actions taken by anyone acting on their behalf,
whether or not it was done with their knowledge, unless the employer
can show that they had tried to prevent such actions.
EXCEPTIONS
There are important exceptions
to the ban on discrimination. The employer may
- deny a same sex partner
access to a benefit if they specify that this benefit - such as
an occupational pension survivor’s benefit - is restricted to
married partners only;
- discriminate where there is
genuine occupational requirement, which is a genuine,
determining and proportionate reason for requiring the employee
to be of a particular sexual orientation;
- discriminate if the
employment 'is for purposes of an organised religion' and a
particular sexual orientation is required to comply 'with the
doctrines of the religion', or 'to avoid conflicting with the
strongly held religious convictions of a significant number of
the religion’s followers'.
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 persons of a particular sexual orientation to
apply for particular work or training if this is to compensate for
disadvantages otherwise suffered by persons of that sexual
orientation.
ENFORCEMENT
Complaints under the new
regulations will be heard by Employment Tribunals, (or by county
courts where the respondent is a college), and have to be submitted
within three months (six for a county court). The same remedies and
rules will apply as for other complaints such bodies.
The complainant may submit a
questionnaire to their employer and the tribunal may draw
appropriate inferences from a failure to respond.
The burden of proof lies on
the employer to show that they have not broken the law, once a prima
facie case has been made out by a complainant.
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