Discrimination on the grounds of sexual orientation and religion

05 October 2004
Discrimination on the grounds of sexual orientation and religion

Most employers are aware that since the mid 1970s it has been unlawful to discriminate against a person on grounds of their sex and race.

This protection includes not only existing employees but also potential employees, and in certain circumstances, contract and agency staff.

Since December 2003, employers have also faced regulations aimed at outlawing discrimination on the grounds of religious belief and sexual orientation.

Sexual orientation

The Employment Equality (Sexual Orientation) Regulations 2003 outlaw both direct discrimination and indirect discrimination against a person on the grounds of their sexual orientation.

This includes discrimination based upon a person's perception of another's sexual orientation, even if this is perception is incorrect.

A person will therefore be able to bring a claim even if the discrimination is based on an incorrect assumption about his or her sexual orientation.

There is no requirement for the person bringing the claim to disclose their sexual orientation when bringing a claim.

It will also be a breach of the regulations to discriminate against a person by reason of their association with gay friends or because they refuse to carry out an instruction to discriminate against a gay person.

The protection against discrimination will even extend beyond the end of employment. For example, it will be unlawful for an employer to refuse to provide a reference to a former employee because of their sexual orientation.

There are some limited exemptions from the new law. Employers are permitted to discriminate where there is a genuine occupational requirement and it is proportionate to apply that requirement in a particular case.

Religion or belief

The Employment Equality (Religion or Belief) Regulations 2003 define "religion or belief" as any religion, religious belief or similar philosophical belief.

Employment tribunals will have to consider various factors when deciding what constitutes a religion or belief, including the existence or otherwise of collective worship, belief systems and whether the employee holds a profound belief affecting a way of life or view of the world.

The regulations do not include a listing of recognised religions.

Direct and indirect discrimination is prohibited on the grounds of religion or belief even if that discrimination is based on an incorrect perception.

In common with the sexual orientation regulations, the religion or belief regulations also cover discrimination against a person by reason of their association with others of a particular religion or belief.

They also cover discrimination by way of victimisation and harassment. But employers will be able to rely on the defence of a genuine occupational requirement.

by Catherine Wilson Employment law partner at national law firm Eversheds


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