Unbinding the bias

Companies will have to review their equal opportunities policies to ensure that recruitment, promotion and general treatment of staff is without reference or bias in the light of their sexual orientation as well as their gender.

All grievance or disciplinary procedures will have to be altered to recognise that sexual harassment based on sexual orientation is a genuine cause for complaint or punishment. And employers will need to review all terms and conditions in employment contracts to ensure that they are not inherently discriminatory because they differentiate between same-sex and different-sex partnerships.

The changes in the law are set to come about following a recent Opinion given by the Advocate General in the European Court of Justice (ECJ) in the case of Grant v South West Trains.

Concessions

Grant, who is a lesbian, was an employee of South West Trains (SWT). Her contract of employment included entitlement to travel concessions that was available to spouses and dependants of the train company's employees.

The relevant term provided that such concessions were to be granted for common-law opposite-sex spouses of staff provided a meaningful relationship had existed for a period of two years or more.

When Grant was denied a similar concession for her female cohabitee, with whom she had lived for more than two years, she brought a claim against the company arguing that the refusal to grant those travel concessions amounted to sex discrimination when a male employee in the same circumstances would obtain concessions for his female cohabitee.

Giving his Opinion on the case, the Advocate General stated that the provision of Article 119 of the EEC Treaty of Rome precluded all forms of discrimination against employees based "exclusively or essentially on gender".

Applying this test, the Advocate General focused on the specific wording of the concession granted to SWT staff. He concluded that a rule which meant that the concession would only be granted to opposite-sex cohabitees was discrimination exclusively or essentially on gender, and that this was the situation with SWT because it was a requirement that the cohabitee be of the opposite sex in order to get the benefit.

His recommendation, in ruling on the case, is that the ECJ finds that discrimination based on sexual orientation is gender-based and therefore unlawful contrary to Article 119 of the EEC Treaty.

The argument supporting this recommendation is based on the reasoning that discrimination on the grounds of sexual orientation is also sex discrimination. If the sex of the victim were changed and all other features remained the same, there would be no discrimination.

In other words, if a woman with a female partner is discriminated against but a man with a female partner is not, sex discrimination exists.

While this does not go so far as to say that Article 119 prevents discrimination based on homosexuality, the net effect is that it does prevent it, hence the implications for protection of gay employees.

The significance of the Grant v South West Trains case is clear when we see that there have been a number of cases in the UK which have tackled the issue of whether discrimination on the ground of sexual orientation is unlawful, with mixed results.

In the case of R v Ministry of Defence, the court ruled that the Sex Discrimination Act does not prevent discrimination on the grounds of sexual orientation but only on the grounds of sex - ie, by gender.

Implications

Over the coming months, we are likely to see what the implications of the Grant case will be for UK employers. The ECJ almost always follows the reasoning of the Advocate General and undoubtedly it will do so in following this radical step forward for equal employment rights.

The decisions of the ECJ are binding on lower European courts. This increased protection for gay people at work will soon be reflected in the decisions made by industrial tribunals called on to judge cases of sex discrimination on the grounds of sexual orientation.

In readiness, employers will need to assess their positions and take care not to fall foul of the law.

Jonathan Exten-Wright is a partner in the employment department of national law firm Dibb Lupton Alsop. Tel: 0345 262728