Discrimination Update - Be Prepared!

In December 2003, regulations came into force making it unlawful to discriminate against an employee on the grounds of sexual orientation. For many, these Regulations were long overdue with the then existing law offering little protection for gay and lesbian employees.

However, despite this new protection being in place, the regulations have taken time to bite. There have been recent ET cases where employees have been subjected to homophobic comments. Such treatment is obvious harassment and even if employees remain silent, such conduct, by managers, or other members of staff, is likely to present a significant risk to the employer.

And it could be an expensive risk too. Many will be aware of the claim currently being brought by HSBC’s former Head of Equity, Peter Lewis. Mr Lewis is suing the bank for £5 million after being accused of a lewd act in the work’s gym by another employee, resulting in his dismissal. Mr Lewis claims he was fired because he is gay and denies the conduct of which he is accused. HSBC are defending the claim and deny any discrimination against Mr Lewis. At the time of writing, the case is ongoing.

Equal opportunities and harassment policies should be amended to include sexual orientation and staff appropriately trained. Harassment of this nature should not be tolerated and this should be reflected in the disciplinary procedure.

There have also been case law developments in respect of disability discrimination. In the recent case of Southampton City College v Randall, the Employment Appeal Tribunal held that the creation of a new post could amount to a reasonable adjustment to be considered by an employer and that such a notion is not precluded by the DDA.

It is clear from the EAT’s decision that any such adjustment will depend on the facts of the case. However, whilst not laying down any principle requiring employees to consider creating new posts, it does continue the trend of decisions which have supported more favourable treatment for disabled employees. This is in line with the decision in Archibald v Fife County Council, where House of Lords held that it may be a reasonable adjustment to offer an employee a higher grade job than the employee’s current role without requiring the employee to undertake a competitive interview.

Employers need to protect their employees from discrimination on the grounds of sex, sexual orientation, race, disability and religion. From October 2006, such protection will extend to discrimination on the grounds of age. With Tribunals ever keen to take a proactive approach and the potential compensation consequences, it is essential that employers are aware of the issues and have appropriate measures in place to protect their employees and their businesses.

For more information on this subject or other employment issues, please contact Yvonne Atherton on 0191 233 9789.

« Back to 2006 Archives