Guidance Formembers And

NATIONAL UNION OF TEACHERS FEBRUARY 2007

GUIDANCE FORMEMBERS AND

SCHOOL REPRESENTATIVES

SEXUAL ORIENTATION DISCRIMINATION

Introduction

The Employment Equality (Sexual Orientation) Regulations 2003 (the Regulations) came into force on 1 December 2003.

The provisions cover employment and vocational training and give specific protection from direct and indirect discrimination, harassment and victimisation on the grounds of sexual orientation.

Under the Regulations it is unlawful to discriminate against a worker on the grounds of sexual orientation in relation to:

• recruitment;
• pay;
• terms and conditions of employment;
• training;
• promotion;
• transfer; and
• dismissal.

It is unlawful in certain circumstances to discriminate against a former employee after the employment relationship has ended.

What is meant by the term sexual orientation?

The Regulations define sexual orientation as an orientation towards persons of the same sex, persons of the opposite sex, or persons of the same and opposite sex.The protection under the legislation is available to individuals who are gay, lesbian, bisexual or heterosexual.The term does not extend to gender reassignment, which is distinct from sexual orientation. The Sex Discrimination Act 1975 protects employees from discrimination on the grounds of gender reassignment.

Do the provisions protect all teachers?

Yes. Allteachers are protected from discrimination at work. There is no qualifying period for protection from discrimination, the protection starts from day 1 of a teacher's appointment.

What discrimination is covered?

The Regulations will protect teachers from discrimination, victimisation and harassment.

Direct Discrimination

The employer will be liable where a person - for example, an employer, headteacher, another teacher, or a school governor - discriminates against a teacher on the grounds of sexual orientation.

Indirect Discrimination

Employers must not have employment practices or procedures relating to employment which apply to everyone butdisadvantage employees of a particular sexual orientation.Indirect sexual orientation discrimination may be unlawful even if it is not intentional.

Victimisation

The employer will be liable where a teacher is treated less favourably because he or she has taken any action under the Regulations or if the employer knows or suspects that the teacher intends to do so.

Harassment

The harassment provisions cover harassment by an employer or employee.If the purpose or effect of a person's conduct is to violate another's dignity or to create an intimidating, hostile, degrading, humiliating, or offensive environment for him or her, on the grounds of sexual orientation, the employer will be liable.

What protection from sexual orientation discrimination is there for teachers seeking employment?

Teachers should not be discriminated against or harassed in recruitment procedures. This includes advertisements, selection and interview procedures, appointment procedures and the terms of employment.

Are teachers protected from sexual orientation discrimination during employment?

The protection from discrimination and harassment continues throughout a teacher's employment. Teachers should not be subjected to a detriment on the grounds of sexual orientation in access to and procedures for promotions or transfers, training or receiving any other benefit.

What if a former employer discriminates against a teacher?

Where an employment relationship has come to an end, it is unlawful for an employer or employee to discriminate against a former worker by subjecting him or her to a detriment or to harassment; this applies similarly to the provision of references.

Can an employer insist that a teacher must be of a particular sexual orientation?

An employer may argue that an employee must be of a particular sexual orientation if it can show that it is a genuine requirement of the post, which the employer must justify as necessary. The NUT does not envisage that any teaching post requires a teacher to be of a particular sexual orientation.

What about teachers infaith schools?

The Regulations allow employers with a religious ethos to claim that certain jobs require the post holder to be of a particular sexual orientation.

The NUT challenged the Government on the legality of this exemption. The judge gave a clear indication that the exemption was unlikely to apply to teachers employed in faith schools. This was because the Regulation applies to employment for purposes of an 'organised religion' rather than employment for purposes of a 'religious organisation'. It was unlikely that a teacher, employed in a faith school, would be employed for purposes of an 'organised religion'.

The NUT believes that employers in faith schools, including Academies with a religious character, cannot – in refusing to appoint, or treating a teacher less favourably or dismissing a teacher – rely upon a teacher's sexual orientation alone.

What steps should teachers take if they have been discriminated against or harassed on the grounds of sexual orientation?

Members should inform their divisions if they have been discriminated against or harassed on the grounds of sexual orientation.

Members will be advised on their statutory and contractual rights and consideration will be given to whether a written grievance should be lodged, followed, in some circumstances by a complaint to an Employment Tribunal.

A written statement of grievance must be submitted to the employer within three months of the last act of discrimination or harassment.

1

GUIDANCE TO MEMBERS SEXUAL ORIENTATION DISCRIMINATION