NATIONAL UNION OF TEACHERS
FEBRUARY 2007
GUIDANCE FOR MEMBERS 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:
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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. All teachers 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.
GUIDANCE TO MEMBERS
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SEXUAL ORIENTATION DISCRIMINATION
NATIONAL UNION OF TEACHERS
FEBRUARY 2007
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, head
teacher, 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 but disadvantage 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.
GUIDANCE TO MEMBERS
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SEXUAL ORIENTATION DISCRIMINATION
NATIONAL UNION OF TEACHERS
FEBRUARY 2007
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 in faith 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.
GUIDANCE TO MEMBERS
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SEXUAL ORIENTATION DISCRIMINATION