The Employment Equality (Sexual Orientation) Regulations 2003 (which came into force in December 2003) seek to protect workers against discrimination and harassment on the grounds of sexual orientation.
In December of last year the Civil Partnership Act 2004 came in to force giving same sex couples the same rights of civil marriage. The Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005 amends existing employment legislation to extend certain rights including the right to paternity and adoption leave and pay and the right to request flexible working to civil partners.
These two pieces of legislation require that employees are treated equally in the workplace irrespective of their sexual orientation. However, surveys conducted recently suggest that the reality is still far from the ideal. A survey carried out by Gay Times and Diva magazines suggests that 49% of women and 48% of men do not want to reveal their sexuality at work. Every employee is entitled to his/her privacy but the likelihood is that the reluctance to reveal sexuality can be attributed to the fear of discrimination, harassment and bullying.
The statistics suggest employers are not doing enough to create a working environment that is free from the fear of discrimination and harassment on the grounds of sexuality. Further the employer cannot seek refuge in the fact that the harassment or discrimination was by one employee to another. An employer has a duty to take reasonable steps to prevent employees from engaging in conduct that constitutes discrimination or harassment and an employer must be able to demonstrate this when faced with a claim by an employee who has suffered discrimination or harassment at the hands of another employee.
It is clear, therefore, that the law places a positive obligation on employers to protect the welfare of their employees. A survey carried out in 2004 and published in the British Journal of Psychiatry suggests that discrimination on the grounds of sexual orientation may be linked with increased levels of mental disorder after high rates of planned and actual deliberate self-harm and psychiatric problems were found among gay men and lesbians.
The employer has an ongoing duty in practice to monitor their employee's working environment to detect any signs of discrimination or harassment. However, it is very important on a more general level to set out the standards expected of employees and to promote diversity in the workplace and perhaps the best way of doing this is through an equal opportunities policy.
It is important in your equal opportunities policy to explain to employees what conduct will constitute discrimination and harassment. For example, many employees may not realise that in some circumstances comments intended as a joke can amount to harassment. In the 2004 Employment Tribunal case of Mann v BH Publishing Limited, a Tribunal held that an employee had suffered harassment and direct discrimination when his manager continued to imitate his accent after he requested that he stop.
Employees ought to be encouraged in any equal opportunities policy to speak to a named contact in the business if they have concerns that they or someone else is being discriminated or harassed in the workforce. The policy should express that confidentiality will be protected as much as possible as many employees may be reluctant to speak up for fear of a backlash.
Having a policy in place and monitoring its application on a day-to-day basis is not enough. Employers ought to provide regular training to those with responsibilities under the policy, to all managers and preferably to all employees in order that everyone is clear on their responsibilities.
The onus is on the employer to make his workplace somewhere where all employees feel comfortable to admit their sexuality if they choose to without fear of recrimination. The price tag for getting it wrong is high and compensation will often include damages for injury to feelings. In recent years the law has set out to provide protections for employees but in order for them to reap the benefits of this protection employers need to play their part in changing society's attitudes.