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Employment Equality (Sexual Orientation) Regs 2003 Briefing 114




Employment Equality (Sexual Orientation) Regs 2003 No 114



This legislation, enacted on 1st December 2003, was introduced to comply with the EU directive on equal treatment in employment and occupation.

Who is covered?

The regulation applies to all persons, in both public and private sectors, including public bodies, in relation to:

  1. Conditions of access to employment, including promotion
  2. Access to all types and all levels of vocational guidance and training
  3. Employment and working conditions including pay

4. Membership of, and involvement in, an organisation of workers or employees.

An employer will be liable for the unlawful actions of his employees whether or not it knew of those acts.

Less Favourable Treatment

The regulations cover all forms of discrimination:

Direct Discrimination: Where one person is treated less favourable than another on grounds of sexual orientation. This can include comparison with the previous treatment of another person, or how a comparable person might hypothetically be treated. Discrimination can be based on the actual sexual orientation of a person but also on the perception of the discriminator. It is unlawful to discriminate against some on the grounds that they associate with a person of a particular sexual orientation or because they refuse to follow an instruction to discriminate against someone by reason of sexual orientation.

Indirect Discrimination: To apply a provision, criterion or practice which disadvantages people of a particular sexual orientation unless it can be objectively justified. Indirect discrimination is illegal whether intentional or not.

Victimisation: Adverse treatment or adverse consequences imposed on an individual as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.

Harassment: Unwanted conduct relating to sexual orientation which violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them having regard to all the circumstances including the perception of the victim.

Objective Justification

The regulations do however allow for indirect discrimination to continue under specific conditions. For such treatment to continue it must be 'objectively justified'. Therefore it must be shown to correspond to a real business need, be necessary to achieve the objective in question, and be proportionate to it.

Burden of Proof

Where the complainant appears from the facts to have case under this regulation then it shall be for the respondent to prove that such an act did not occur


Genuine Occupational Requirement: In very limited circumstances it will be lawful for an employer to treat people differently if it is a genuine requirement that the job holder be of a particular sexual orientation. When deciding if this applies it is necessary to consider the nature of the work and the context in which it is carried out.

Religion: The regulations also allow for differences in treatment where the employment is for the purpose of an organised religion. It would need to be established that the requirement is necessary to comply with religious doctrine.

The regulations only apply to sexual orientation, lesbians and gay men, heterosexual and bisexual people. It does not affect the laws relating to sexual practices.

Positive Action: It is possible to take certain steps to redress the effects of previous inequality of opportunity. Although not permitted to discriminate positively, employers may give special treatment to, or provide specific training for persons of a particular sexual orientation who are in the minority in the workplace.

National Security: The Regulations do not outlaw any measure taken to safeguard national security so long as it is justified.

Marital Status: Rules based on marriage do not constitute unlawful discrimination on grounds of sexual orientation despite the fact that it is not possible for same sex partners to marry in the UK.

What to do next

If an employee suspects that they are being treated less favourably treated by their employer on grounds of sexual orientation they should alert their shop steward or branch equality officer who may advise the member to use the organisation's grievance procedure. Employees are also entitled to bring their case before an employment tribunal.

The employer can be required to answer a questionnaire about discrimination in your workplace. Complaints to an employment tribunal must usually be brought within three months of the act to which the complaint relates.

Further Information

Department of Trade and Industry: Employment Relations: The Employment Equality Regulations 2003






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Further Information

Department of Trade and Industry: Employment Relations: The Employment Equality Regulations 2003


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