Legislation overview

The principal legislation governing sexual orientation discrimination from 1 October 2010 is the Equality Act 2010. The Act represents the most significant overhaul of the legislation covering discrimination since the 1970s.

Before 1 October 2010 the key legislation was the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) (the Regulations). These Regulations had been in force since 1 December 2003 implementing the sexual orientation aspects of EC General Framework Directive (2000/78).

There is a helpful and detailed Code of practice on employment and other non-statutory guidance available on the Equality and Human Rights Commission (EHRC) website.

Answer:

The relevant provisions of the Equality Act 2010 set out a number of protected characteristics including sexual orientation.

The definition of sexual orientation in the Equality Act 2010 is the same as under the previous legislation. It means a sexual orientation towards:

  • persons of the same sex
  • persons of the opposite sex
  • persons of both sexes.

In other words people who have been discriminated against because they are gay men, lesbians, bisexual men and women and heterosexuals are covered by the legislation.

In addition the following discrimination is covered. Discrimination against someone because:

  • of their association with someone of a particular orientation, for example discrimination against an employee because their child is gay would also be covered
  • they have refused to carry out an instruction to discriminate
  • of the perception of their orientation.

For more information see the related Q&A Does a sexual orientation discrimination claim arise if an employer does not know about an employee’s sexuality?

The following case (decided before the Equality Act 2010 came into force) helps illustrate the way in which the law applies to heterosexuals as well:

In Sharon Legg v Rubyz Ltd (unreported, Employment Tribunal 2007) a heterosexual woman who worked as a bouncer and head of security at a gay club established harassment on the grounds of her (heterosexual) sexual orientation under the 2003 Regulations. She alleged the other staff (who were homosexual or bisexual) refused to follow her instructions and subjected her to harassment because she was heterosexual. She was eventually dismissed following a dispute with another member of staff. She won her claim for sexual orientation discrimination, receiving £3,000 for injury to feelings. The Tribunal also awarded her £3,222 for unfair dismissal although the dismissal was not on the grounds of her sexual orientation.

Acas has published a guide which aims to provide employers an insight into how sexual orientation discrimination can occur in the workplace, how it can be dealt with and how to reduce the chance of future discrimination.

Answer:

Examples of the different forms of discrimination in a sexual orientation context are:

Direct discrimination

An employer will directly discriminate where on the grounds of the person's sexual orientation 'A' treats 'B' less favourably than they would treat other persons. Direct discrimination would occur where an employer refuses to promote an employee because they are a lesbian.

In order to show that the worker has been treated less favourably than other persons in a direct claim a suitable comparator has to be identified.

For example if a waiter in a restaurant owned by a gay couple complains that they have not been promoted because they are heterosexual, the correct comparator would be a waiter in the same position save for the fact that they are not heterosexual.

If a real comparator cannot be identified then a hypothetical one may be identified.

Direct discrimination remains essentially unchanged under provisions in the Equality Act 2010 which came into force on 1 October 2010. It is now clear that a form of direct discrimination occurs when someone is treated less favourably than another because they are thought to have a protected characteristic (perceived discrimination), or because they associate with someone who has a protected characteristic (associative discrimination).

Indirect discrimination

Indirect discrimination can be summarised as the application of a provision, criterion or practice which is discriminatory in relation to a person with a protected characteristic, in this case sexual orientation.

Indirect discrimination occurs where 'A' applies to 'B' a provision, criterion or practice which is applied equally to persons not of the same sexual orientation but:

  • which puts or would put persons of the same sexual orientation as 'B' at a particular disadvantage when compared with other persons
  • which puts 'B' at that disadvantage and
  • which 'A' cannot show to be a proportionate means of achieving a legitimate aim.

An example would be a job advertisement which seeks a married couple to manage a hotel. This is a criterion which would put homosexual couples at a disadvantage. It is unlikely that the hotel owner would be able to show this requirement pursued a legitimate aim and that it was proportionate.

Victimisation

A person 'A' discriminates against another person 'B' if they treat 'B' less favourably than they treat others because 'B' has:

  • brought proceedings against 'A' or any other person under the Regulations
  • given evidence or information in connection with any proceedings brought under the Regulations
  • otherwise done anything under or by reference to the Regulations.

An example would be worker 'B' who gives evidence for a fellow worker who has brought a sexual orientation discrimination claim in the tribunal, and subsequently 'B' is not promoted as a result of their support.

The Equality Act 2010 makes it clear there is no need to use a comparator to measure the treatment of the ‘victim’ with another person who has not made or supported a complaint under the Act.

Harassment

A person 'A' subjects another person 'B' to harassment where on grounds related to a protected characteristic, for example sexual orientation, 'A' engages in unwanted conduct which violates 'B's' dignity or creates an intimidating, hostile or degrading environment for 'B'.

Examples would be jokes, nicknames, verbal abuse and physical harassment. In deciding whether conduct has the intimidating, hostile etc effect, the perception of the victim and the other circumstances of the case must be taken into account.

The Equality Act 2010 makes it clear that associative harassment is sufficient to establish a claim and that employees can also complain of behaviour they find offensive, even if it is not directed at them. Complainants are therefore protected from harassment because of both perception and association.

Employers may be liable for any act of discrimination carried by employees in the course of their employment (including harassment), although the employee will also be personally liable. In some limited circumstances, employers may be liable for acts committed by third parties. For more information on acts of discrimination carried out by employees see the Q&A Can an employee sue both an employer and a manager together in the employment tribunal and how does vicarious liability work? in our Tribunal claims, settlement and compromise Q&As and for more information on third party harassment see the Q&A Will an employer always be liable for sex discrimination when it has failed to prevent harassment on the grounds of sex or sexual harassment of one employee by a third party? in our Sex discrimination Q&As.

Answer:

Whether an employer can attempt to justify or defend a claim of sexual orientation discrimination depends upon the precise nature of the claim being brought. It is very difficult to defend a claim for direct discrimination although very rarely some employers may be able to show an 'occupational requirement'.

With indirect discrimination claims an employer may be able to justify their act of discrimination. With harassment and victimisation claims the employer may be able to defend themselves by distancing the organisation from the acts of other employees.

For more information see our Sex discrimination Q&As.

Answer:

Yes, a sexual orientation discrimination claim can arise even if an employer does not know about an employee’s sexuality. The crucial point is that employers must help create at work an atmosphere where differences relating to any of the protected characteristics are respected, or at the very least tolerated.

Employers must have anti-discrimination policies and procedures prohibiting all forms of discrimination including that on grounds of sexual orientation and ensure that all employees know that homophobia will not be tolerated.

In addition a sexual orientation discrimination claim can arise even if the employee does not have the sexuality which they are assumed to have.

Discrimination against someone because of the perception of their orientation is protected. For example, it appears that if a worker is discriminated against because the employer thinks that they are gay then the protection will apply, regardless of whether the worker is gay or not. The complainant does not usually have to disclose his or her real orientation at any stage, although in most cases the complainant does disclose this. Of course, the discrimination does not have to be because of an employee’s own sexuality but can be because of their association with someone of a particular orientation, for example discrimination against an employee because their child is gay would also be covered.

Case law examples

The following examples (decided under legislation before the Equality Act 2010 which came into force on 1 October 2010) help to illustrate how the law works.

The two cases English v Thomas Sanderson Blinds Ltd [2009] IRLR 206, CA and Thomas Sanderson Blinds Ltd v English (unreported, UKEAT/0316/10 21 February 2011, EAT) established the following:

  • The Court of Appeal confirmed that the use of homophobic language by work colleagues to harass a heterosexual man because he had gone to a boarding school and lived in Brighton was contrary to legislation. Although his colleagues knew he was not gay, the bullying or harassment was sufficiently based upon the claimant’s sexual orientation (whether real or imagined) and had the effect of violating the claimant’s dignity and creating a degrading, humiliating or offensive environment for him.

  • The hearing of the other aspects of the claim for direct discrimination and harassment on the grounds of sexual orientation established that the following steps should be followed to decide whether there has been sexual orientation harassment:

    • the claimant's own perceptions and feelings have to be explored in order to decide whether the effect of the unwanted conduct was to violate their dignity or create an adverse environment, then

    • it has to be decided whether or not it was reasonable for the claimant to have this feeling or perception, and

    • if it is reasonable to have that feeling then the conduct complained of will amount to harassment.

In Grant vHM Land Registry [2011] IRLR, 748, CA the Court of Appeal (CA) considered the issues surrounding 'outing' gay employees in the workplace. An employee had come out to the other staff at the Land Registry when he worked in another office. He subsequently ended up working at a second office where a female manager referred to the fact of his sexual orientation in the work-place. She made 'limp wrist' gestures towards him and said to another female colleague, 'Don't go fluttering your eyelashes at him, he's gay'. He claimed discrimination and harassment.

The CA agreed with the Employment Appeal Tribunal that the employment tribunal should have considered the fact that the employee was ‘out at work’ when he worked in the previous office. By putting his sexuality into the public domain a claimant takes the risk that he may become the focus of conversation and gossip. Gossip provided it is not ill-intentioned would not in itself be direct discrimination or harassment even if the claimant was upset by the disclosure. However, even though an employee has ‘come out’, remarks or references to his sexuality can constitute discrimination if they are vitriolic or offensive. 'Outing' someone could also be an act of direct discrimination and harassment in other circumstances.

Answer:

The fact that an employer (or employee committing the discriminatory act against another employee) did not intend that a discriminatory comment should be seen or heard is not a defence in a discrimination claim.

In Bivonas LLP and others v Bennett (unreported, EAT/0254/11 31 January 2012, EAT) an openly gay barrister was reviewing a case file and came across a three-page handwritten note made by one of the partners in the firm in which the barrister and another colleague were discussed. As well as uncomplimentary comments on both men’s work, the note also referred to the barrister’s sexual orientation in a way he found offensive and said that the barrister was passing work to a friend just because he too was gay. When the barrister raised the matter with the employer they investigated and said that the comments were a personal ‘aide-memoire’. The barrister claimed that he had been the victim of sexual orientation discrimination.

The Employment Appeal Tribunal agreed that the law firm had discriminated against the barrister on the basis of his sexual orientation as the handwritten note was ‘offensive and insulting on its face’ and could constitute a detriment to the employee.

Answer:

The potential award of compensation to people who face discrimination on grounds of their sexual orientation is unlimited, as in all cases of discrimination. For general guidance on the approach to the calculation of compensation in a discrimination context, see our Tribunal claims, settlement and compromise Q&As which address the elements of financial loss, injury to feelings and aggravated damages.

As the law in this area is still evolving, the case law guidance on the amount of compensation an employer will have to pay an employee who succeeds in a sexual orientation discrimination claim is relatively limited. The extent of the compensation will reflect other forms of discrimination and depend upon the nature of the abuse.

The number of cases could be further limited due to introduction of tribunal fees which has caused a dramatic fall in employment claims.

Statistics published by the Employment Tribunals Service show that between April 2014 and March 2015 the median award in successful sexual orientation discrimination claims was £6,000 with the highest award being £80,783 (compared with £27,659 in the previous year).

The Employment Appeal Tribunal (EAT) and Court of Appeal (CA) have also produced guidelines for injury to feelings in discrimination cases. This guidance states that compensation for injury to feelings, even in the most serious cases, should be limited to between £18,000 and £30,000 unlike the multi-million dollar punitive awards available in the USA. (See Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102, CA and Da'Bell v NSPCC (unreported, EAT/227/09).

Case law examples

The following cases (decided before provisions in the Equality Act 2010 came into force on 1 October 2010) also give an indication of the approach to compensation taken under the Act.

The first ever case brought under the Employment Equality (Sexual Orientation) Regulations 2003 wasWhitfield v.Cleanaway UK Limited (unreported, Stratford Employment Tribunal 28 January 2005, ET). The claimant had been subjected to sustained abuse from senior members of staff at Cleanaway and was eventually forced to leave his £54,000 a year job as business manager. The claimant received £35,000 in compensation.

In Ditton v CP Publishing Ltd (S/101638/06, S/107918/05, F080/199 May 2006) a gay sales manager who quit after only eight days with the company, was awarded over £120,000 in compensation. He had been called persistent homophobic comments by a senior employee including 'Stoke on Trent' (as rhyming slang for 'bent') and 'you wee poof'. There had clearly been both direct discrimination and harassment on the ground of sexual orientation. Medical evidence determined that Mr Ditton had been psychologically damaged by the experience, which explained his inability to get further employment. In view of the potential earning power of the job rising to £85,000 per year, the Tribunal awarded £10,000 for injury to feelings, £76,937 for pecuniary loss, £5,291 interest and £26,081 extra for the company's failure to follow statutory procedures.

The case Peter Lewis v HSBC Bank plc (UKEAT/0364/06/RN and UKEAT/0412/06/RN 19 December 2006, EAT) is another illustration of the uncapped nature of sexual orientation discrimination claims. An employee claimed £5m compensation from HSBC bank for unfair dismissal and discrimination on grounds of sexual orientation. He was the former global head of equity trading at the bank and was dismissed from his £1 million a year job in February 2005 for gross personal misconduct when another employee alleged that he had performed a lewd act and looked at him while they were at the bank's gym. The employee did not recover the £5 million compensation claimed, essentially because the decision to dismiss was wholly attributable to a genuine and legitimate conclusion that the employee was guilty of the gross misconduct alleged. However, the employer inevitably incurred significant legal costs defending the claim.

In Callahan v Benchmark Cleaning Services Ltd (ET/3200640/2013, 9 December 2013, ET) a tribunal awarded the claimant £2,000 for injury to feelings. The claimant who was gay worked for a company with over 40 cleaners and operational staff run by the director who established the company.

On several occasions the director had made a 'limp wrist hand gesture' and said 'hello darling' to the claimant which started as a joke, but over time started to affect him. The director also made comments to the effect that he 'did not understand why God made homosexual men'.

The employment tribunal found that a reasonable person would find comments and the hand gesture humiliating and the comments about God and homosexuals insulting, but that the detrimental comments did not amount to harassment. It was agreed by the claimant that the 'hello darling' comments were intended as a joke and the comments about God and homosexuality were made in the context of a discussion about religion. However, the conduct did constitute direct discrimination, as there was no evidence to suggest that the director had made similar jokes about any other member of staff’s sexuality. If the claimant had complained about the conduct at the time, the harassment claim may have succeeded as well.

So far in the UK, large awards for discrimination claims are rare and on the facts in the Peter Lewis case the employee eventually failed to establish sexual orientation discrimination in the tribunal. However, employers should not be complacent, as tribunals can award substantial damages where appropriate. The level of the claim and indeed the irrecoverable legal fees incurred by the employer in defending it, illustrate the commercial sense for all employers in investing management time to prevent sexual orientation discrimination claims. Prevention is better than cure and employers with the reviewed equal opportunities and anti-harassment policies and procedures, and who demonstrate proper implementation of such policies, will be better placed to defend discrimination claims. Employers that do not take these steps will be at risk. See also the related Q&A If there is an equal opportunities policy in place is there anything else an employer should do to deal with prejudice, banter or heterosexual machismo in the workplace?

It is also important to note that an employer’s failure to follow the Acas Code of practice on disciplinary and grievance procedures can lead to an increase in all aspects of the award of compensation.

Answer:

Many cases to date involving sexual orientation and indeed sex discrimination have occurred in workplaces where a certain atmosphere or culture appears to prevail or be tolerated. Examples of activities or corporate entertaining which expose an employer to sexual orientation or sex discrimination claims include trips to lap-dancing clubs, rugby matches and out-of-hours drinking sessions. There may be direct or indirect discrimination claims and where such activities violate a person's dignity or create an intimidating, hostile, degrading or humiliating work environment, employees may have a claim for harassment or direct discrimination under the discrimination legislation. In such workplaces gay or lesbian employees could bring claims under the Equality Act 2010.

The fact an employer has an equal opportunities policy is not sufficient to protect it from sexual orientation discrimination claims. All employers must regularly review and communicate and enforce their employment practices, policies and procedures to ensure that they do not either directly or indirectly give rise to such claims. Any benefits dependent on marital status should be extended to civil partners.

Although an employer may be able to establish that it took reasonable steps to prevent vicarious liability for homophobic harassment by employees, the employer is expected to be very proactive. For example in Martin v Parkam Foods Ltd (unreported, ETS 1800241/2006 12 June 2006, ET) an employee who was gay was the subject of graffiti and offensive remarks. The employer was eventually suspended due to the stress and to enable the organisation to investigate his ongoing complaints. He then resigned and presented a successful tribunal claim for constructive unfair dismissal and direct discrimination and harassment on the grounds of sexual orientation.

Although the employer had anti-discrimination policies and procedures prohibiting discrimination on grounds of sexual orientation and these were communicated to managers, the policies were ineffective in ensuring that the graffiti did not reoccur. Although the employer had been unable to identify the author of the graffiti it should have taken further steps such as training, team briefings, meetings, putting notes in payslips so that each employee was left in no doubt that the employer would treat homophobia extremely seriously and that the perpetrators were at risk of dismissal. The notices in the toilets should also have referred to the homophobia. The employer should have apologised to the victim and should not have suspended him while investigating his grievance.

In Moules and Amos v Aquatec Rainsoft Limited (unreported, Employment Tribunal 2009) an employer failed to intervene to prevent two employees (who were a lesbian couple) being humiliated by comments at work. The employer said that the perpetrator would not be sacked, saying 'Don't expect anything to be done about it'. The employer was ordered to pay £5,000 for injury to feelings for sexual orientation discrimination, together with further unfair dismissal damages totalling more than £22,000 compensation.

For an employer, merely having policies in place and carrying out investigations will not be enough. It is also necessary to challenge people's attitudes towards homophobia and to educate employees. Evidence of diversity within a workforce will not automatically help an employer to prove that discrimination is unlikely to have occurred.

Employers should be aware that derogatory comments about an employee's sexual orientation, even if made in jest, will, in the majority of instances, constitute either harassment or direct discrimination and should act to prevent this (also see the Callahan case in the related Q&A Is there case law guidance on the amount of compensation an employer will have to pay an employee who succeeds in a sexual orientation discrimination claim?).

Answer:

From December 2005, as a result of the Civil Partnerships Act 2004, same-sex couples who are aged 16 have been able to obtain legal recognition of their relationship by registering as each other's civil partner. This has been followed by the Marriage (Same Sex Couples) Act 2013. While the 2004 and 2013 acts do not really concern employment law matters directly, the advent of civil partnerships has given rise to some practical administrative problems for employers.

It could constitute direct or indirect discrimination on the grounds of civil partnership status if information on whether new employees are in a civil partnership were to be sought unnecessarily, depending on the facts and how the information is used.

Therefore, it is probably easier to avoid requiring new employees to complete a form specifying whether they are in a civil partnership, as this would in effect require them to disclose their sexuality at a stage in the employment relationship they may not wish to do so.

In many cases it will be possible to word policies and forms so that they use the terminology of ’spouse or civil partner’ without having to specify which applies. Alternatively as a short term solution existing forms could be amended to read ’wherever ’husband or wife’ is referred to, this includes those who have registered a civil partnership under the Civil Partnerships Act 2004’.

However, information may be needed for legitimate reasons, for example:

  • because the employer wishes (as it must) to offer employment benefits such as pension arrangements*(see note), private medical insurance etc to partners in a civil partnership in the same way as married partners, or
  • in a discrete and non-compulsory way as a part of equal opportunities monitoring, or
  • to ascertain next of kin details ( for use in the case of illness or emergency).

If details are sought for a legitimate reason then the form should explain the reason for the information being sought.

*(note) For further information on the pension protection for employees who are civil partners see the related Q&A Is an employee who is in a same sex marriage or civil partnership, entitled to the same pension rights as those in an equivalent heterosexual relationship?.

Answer:

The occupational pension situation for same sex couples is complicated as it involves a number of different legal provisions. Currently same sex couples are not always entitled to the same pension rights, but the law is changing and it may be safer for employers to offer equal pension provision.

The relevant legislation is:

  • The Civil Partnership Act 2005 which enables same sex couples to enter into a civil partnership.
  • The Marriage (Same Sex Couples) Act 2013 which enables same sex couples to marry in England and Wales from March 2014.
  • The Equality Act 2010 requires every occupational pension scheme to have a non-discrimination rule read into it. The rule means that trustees, managers or any participating employer must not discriminate against, harass or victimise actual or potential pension scheme members

The equalising of the law regarding marriage and civil partnerships may suggest that same sex couples who enjoy these statuses should be given the same pension provision as married heterosexual spouses. Overall same sex married couples enjoy the same legal rights as opposite sex married couples.

However some exemptions in the Equality Act 2010 were introduced to allow occupational pension schemes to exclude civil partners from certain benefits accrued before the legislation came into force.

As a result of the exemptions, survivors’ benefits under occupational pension schemes are treated differently for civil partnerships and same sex marriages:

  • The Equality Act 2010 allows occupational pension schemes to exclude civil partners (but not heterosexual married partners) from having any entitlement to a benefit the right to which accrued before 5 December 2005.
  • Death benefits payable to a same sex marriage survivor can be based just on the pensionable service the member had completed from 5 December 2005 (rather than on full pensionable service).
  • The position is different for contracted-out schemes. Any contracted-out death benefits can be based on rights the member built up after 6 April 1988.
  • The non-contracted-out element of a spouse’s pension which is payable to a surviving same sex spouse can be restricted to pensionable service on and after 5 December 2005.
  • These exemptions originally applied to civil partnerships and are now extended to both same sex spouses and civil partners.
  • Death benefits based just on a multiple of final salary are calculated in the same way as for opposite sex marriage survivors.
Same sex marriage in Scotland and Northern Ireland is dependent on separate legislation in those countries, so the position of anyone who has entered into a same sex marriage in England and Wales under a pension scheme that is subject to the law of Scotland or the law of Northern Ireland is even more confusing.

Pension schemes

A recent case, Walker v Innospec and others (unreported, [2015] EWCA Civ 1000 6 October, 2015, CA), has challenged the validity of these exemptions in the Equality Act 2010 which allow pension schemes to restrict civil partners’ survivors' benefits. The key issue is whether the UK law was incompatible with the Equal Treatment Directive and EU law.

In this case the claimant joined his employer’s pension scheme in 1980 and he and his partner registered a civil partnership in 2006. In that year the pension scheme was amended to take account of civil partnerships and provided for a two thirds of a spouse's pension, but as permitted by statute, for civil partners the benefit was only paid in respect of service on or after 5 December 2005.

The claimant calculated that:

  • in the event of his death, his partner would be entitled to around £500 per annum, but
  • if he was married to a woman of the same age as his partner, she would be entitled to a pension of approximately £41,000 per annum.

He therefore claimed sexual orientation discrimination under the Equality Act 2010 against his employer and the trustees of the Scheme as he and his partner were being treated much less favourably than a married person in the same situation because of their sexual orientation.

The matter reached the Employment Appeal Tribunal (EAT) and the Court of Appeal (CA) which found in favour of the employer and the trustees. The CA held that the law could not be changed retrospectively. Discrimination on the grounds of sexual orientation was not unlawful until 2003 and most of the claimant's service in his pension scheme was completed before then. Therefore the exemption in the Equality Act 2010 is currently seen as being compatible with the Equal Treatment Directive.

The UK parliament apparently intended not giving equivalent pension rights to civil partners and the legislation could therefore not be interpreted as requiring the scheme to provide the same survivors' benefits to all spouses and civil partners.

The CA also decided not to refer the case to the European Court of Justice. There could possibly be an appeal to the Supreme Court.

Review of survivor benefits

However, it does seem unfair that occupational pension schemes can treat same sex married couples and civil partners differently from opposite sex married couples in relation to survivors’ benefits. On 26 June 2014 the Government published a review on the differences in benefits for survivors in occupational pension schemes between different groups of people based on marital status and sexual orientation. Key findings include a focus on the significant costs of providing same sex spouses and civil partners with identical benefits. For example, this overall cost was estimated at £400 million for private sector schemes and a capitalised cost of £2.9 billion for public sector schemes.

The review did not suggest a timeframe for a change to legislation so it is possible that the government may have decide to await before implementing any changes. More information on the review is available on the GOV.UK website.

What should employers do now?

There may be further developments in this area and until then, employers should be careful. The CA held inInnospec that the Equality Act 2010 itself did not breach EU law by denying same sex couples the same benefits as married couples under a pension scheme. So employers can choose to either:

  • pay the minimum pension benefit allowed for by the current legislation, or
  • equalise pension provision regardless of sexual orientation.

The Innospec case only relates to the available exemptions anyway. Generally, using a different basis for calculating pensions for heterosexual and homosexual married couples discriminates against same-sex couples on the grounds of sexual orientation in both EU and UK law. See the German case of Romer v Freie und Hansestadt Hamburg (unreported, Case C-147/08 10 May 2011, ECJ).

Trustees of occupational pension schemes will need to decide whether their schemes need rewording. Trustees and employers need to decide about how they treat same sex partners and whether or not to restrict the death benefits payable to a same sex marriage survivor, to pensionable service on and after 5 December 2005.

Many schemes chose to pay more than the minimum when civil partnerships were introduced in the first place and if they agreed to treat civil partnerships in the same way as marriages they will probably treat same sex marriages in the same way too.

The government may decide that occupational pension schemes must treat same sex marriages on a par with opposite sex marriages. Therefore, schemes which pay only the minimum benefits currently required by law may wish to plan to equalise their provisions in anticipation of future legislation.

The House of Commons Library has published a policy note in July 2015 which looked at the way in which forming a civil partnership or entering into a same sex marriage would affect rights to state, occupational and personal pensions.

Answer:

There have been a number of recent legal changes which may effect future developments in sexual orientation discrimination. The changes are highlighted under the following headings.

Fall in employment tribunal claims

There has been a recent significant fall in employment tribunal claims, including discrimination claims. This is because of recent changes which affect tribunal procedure and therefore have an impact upon sexual orientation discrimination and all other claims. The changes include:

  • the introduction of fees to issue and hear tribunal claims, and
  • Acas early conciliation introduced in April 2014.

Pensions

The occupational pension position of same sex couples is in a state of uncertainty and in June 2014 the Government published a review on the differences in benefits provided in occupational pension schemes to different groups of survivors following the death of the scheme member. For more information see the related Q&A Are employees who are same sex couples entitled to the same occupational pension rights?.

Brexit

In a referendum on 23 June 2016 the UK voted to leave the EU. For information on what Brexit will possibly mean for employment law read the blog by our Public Policy Advisor (Employer Relations).

We have also set up a resource hub on our website where relevant resources and details of our ‘Brexit’ activities will be published.

Explore our related content

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