Last week I wrote a Blog about Stonewall’s list of 100 most inclusive UK employers for LGBTI people. The article summarised the advances in terms of the range of legal protection that the LGBTI communities now enjoy. From protection against discrimination in employment to same sex marriage, the turnaround in fortunes from a persecuted minority to part of the mainstream has been truly remarkable.
F. Scott Fitzgerald, the author of The GreatGatsby once remarked that “Switzerland is a country where very few things begin, but many things end.”
Today, the Swiss voted in a referendum to introduce laws which would extend protection from discrimination to LGBTI people. The proposal attracted support from 63% of Swiss voters and, finally, begins to bring the country into line with many of its neighbours who happen to EU member states. Switzerland is not part of the EU and, therefore, is not under any obligation to implement European laws which combat sexual orientation discrimination.
Critics of the Swiss proposal stated that the proposal was unnecessary because the country’s constitution already protected LGBTI individuals (and the country is a signatory to the European Convention on Human Rights). There were also concerns about what the proposal might mean for freedom of speech. Clearly, a majority of voters did not share these concerns.
Switzerland has a reputation for being a relatively conservative society (with a small ‘c’). After all, it was only in 1991 that the Swiss canton of Appenzell Innerrhoden finally permitted women to have the right to vote in cantonal elections. In federal (national) elections, woman had been given the right to vote since 1971.
We often forget this has been an incremental or gradual process in the UK and it did not happen overnight. Therefore, it is not advisable to be for British people to be smug or to have feelings of superiority about this issue. It was, after all, as recently as 2003 that the Employment Equality (Sexual Orientation) Regulations 2003 were implemented by the then Labour Government of Tony Blair. For the first time in UK employment law, LGBTI individuals were protected from discrimination in employment and training. This important law, critically, did not cover the provision of services and it was with the passage of the Equality Act 2010 that this area was eventually covered.
A link to an article on the BBC News app about the story can be found below:
The only gay in the village became a household phrase in the UK thanks to the long running Little Britain sitcom TV and radio series (which has been broadcast by the BBC since 2000).
Daffyd Thomas claimed to be the only gay person in a small, Welsh village (actually he wasn’t), but in some respects his catchphrase reflected the isolation that many people in the LGBTI communities experience – either in their personal or professional lives.
The reason that I mention this topic is because, last week, the LGBTI campaigning organisation, Stonewall, published research about the most inclusive LGBTI friendly employers in the UK (Newcastle City Council topped the list). That said, for many LGBTI employees, an inclusive work place is still a far off dream.
Please find a link to a story on the Sky News website about one employee’s decision to hide his LGBTI identity from his colleagues:
A person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).
Many years ago, I remember teaching a group of students who were studying for a professional qualification. Many of them were employed by recruitment agencies and it was my task to highlight the relevant provisions of discrimination law at that time. One evening, we had a discussion about discrimination on the grounds of a person’s sexual orientation – particularly in the context of the ban on gay and lesbian people serving in the UK Armed Forces. This ban would eventually be lifted in 2000 – following the decision of the European Court of Human Rights in Smith and Grady v UK (1999) 29 EHRR 493.
One of the students asked me what protection existed for gay and lesbian people in employment law generally. Very little was my response. Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, the work place could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School  UKHL 34).
Yes, admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights. In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands. Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.
The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.
Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles. Things have since moved on.
In the last 20 years, the influence of the European Union has been particularly profound regarding measures to combat sexual orientation discrimination.
In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.
It did not extend to the provision of goods and services, so had the case of Bull and Another v Hall and Another  UKSC 73 had occurred when the Directive was transposed into UK domestic law, the same sex couple who were refused a double room at the guest house in Cornwall would not have been successful in their claim for sexual orientation discrimination.
On 1 December 2003, the Employment Equality Directive would eventually become part of UK law in the form of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were repealed and replaced by the relevant provisions of the Equality Act 2010 (which came into force on 1 October 2010).
Shortly afterwards, the Civil Partnerships Act 2004 would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Currently, Northern Ireland is the only part of the UK not to permit same sex marriage – although this will change from next week onwards (see link below):
Robyn Peoples and Sharni Edwards will celebrate their wedding on Tuesday in Carrickfergus.
This change to the law has come about as a result of the introduction of the Northern Ireland (Executive Formation etc) Act 2019 passed by the UK Parliament (in the absence of of a functioning devolved government for nearly the last 3 years).
The Treaty on the Functioning of the European Union (TFEU) is also worthy of comment. Article 19 prohibits discrimination by reason of a person’s sexual orientation and, notably, this provision is hardwired into UK law by way of the Equality Act 2010. Article 19 extended legal protection to gay and lesbian people more generally – over and above the limited areas of employment and vocational training which the Treaty of Amsterdam and the Employment Equality Directive had originally addressed.
The EU Charter of Fundamental Rights (although Poland and the UK had negotiated some opt-outs) contained significant provisions on equality and non-discrimination, namely, Article 20 (equality before the law) and Article 21 (the principle of non-discrimination).
Finally, if employers want to do more to create an inclusive work place, they could start by using Stonewall’s inclusive toolkits (see link below):
As a society, the UK has certainly moved on from the overtly hostile attitudes towards members of the LGBTI communities over the last 50 years or so. The legal rights and protections which LGBTI people now enjoy would have seemed unthinkable in 1967 when a limited form of tolerance was ushered in as a result of the Sexual Offences Act (in England and Wales). More recently, the UK and Scottish Governments have issued pardons to those individuals who were convicted of criminal offences under the previous laws (in 2017: the Policing and Crime Act 2017 in England and Wales (known as Turing’s Law after Alan Turing, the Enigma Code Breaker) and, in 2018, the Scottish Parliament followed suit by passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018).
On Friday 7 February 2020, Phillip Schofield, the British TV celebrity announced that he was gay at the age of 57. Mr Schofield is married with 2 children and had lived a heterosexual life – until now. He likened hiding his sexual orientation to being in prison and being consumed by it.
A link to the story on the Sky News website can be found below:
A person’s protected characteristics in terms of the Equality Act 2010 seems to be the theme of the Blog today.
Sexual orientation is a protected characteristic in terms of Sections 4 and 12 of the Act. Most people these days are familiar with the following definitions in terms of an individual’s sexuality: e.g. heterosexual, homosexual (gay/lesbian) and bisexual.
What about a person who declares themselves to be pansexual?
According to Stonewall, the group which campaigns on behalf of the LGBTI community, this term refers to a person ‘whose romantic and/or sexual attraction towards others is not limited by sex or gender.’ Stonewall also makes the point that bisexual individuals can declare themselves to be pansexual.
An interesting story appeared in today’s British media about pansexuality. Layla Moran, Liberal Democrat MP and possible contender for the leadership of that Party, has declared herself to be pansexual. She is the first Member of the Westminster Parliament to define her sexual orientation in this way. Previously, she would have declared herself as heterosexual.
Andrew Adonis, Labour member of the House of Lords and former UK Government minister tweeted his reaction to the story:
The point that Adonis was trying to make is that it shouldn’t have been a story. As a society, the UK has supposedly become more tolerant and progressive towards people with different sexual orientations.
Ms Moran admitted herself that the decision to be open about her sexual orientation had caused friends and colleagues to worry that this might harm her career – and her aspiration to be the next or future leader of the Liberal Democrats. So much for a more tolerant and progressive society …
Explaining her reason for going public about her sexual orientation, Ms Moran stated that:
“… I feel now is the time to talk about it, because as an MP I spend a lot of my time defending our community [LGBTI] and talking about our community. I want people to know I am part of our community as well.”
A link to the story in Pink News can be found below:
As of today (31 December 2019), heterosexual couples in England and Wales will be able to enter civil partnerships as an alternative to marriage.
This change does not yet extend to Scotland: the Scottish Government has introduced its own Bill to introduce civil partnerships for heterosexual couples.
An info graphic showing the current progress of this Bill in the Scottish Parliament (Stage 1) can be seen below:
When the Labour Government of Prime Minister Tony Blair originally introduced civil partnerships across the UK (as a result of the Civil Partnerships Act 2004) such legal unions were open to gay and lesbian couples only.
It was the first time in the history of Scots and English family law that gay and lesbian couples were entitled to enter a legally recognised relationship.
Fast forward a decade or so and we now have same sex marriage in Scotland, England and Wales – but not yet Northern Ireland (although the clock may be ticking here on this issue). Admittedly, same sex couples can enter civil partnerships in Northern Ireland, but since the Republic of Ireland made same sex marriage legal in 2015, pressure has been mounting for change in the North.
The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education EWHC 128 (Admin).
In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights. The ban on civil partnerships for heterosexual couples was also a potential breach of the Equality Act 2010 in the sense that it represented direct discrimination on grounds of a person’s sexual orientation.
Initially, the English High Court rejected the challenge brought by Steinfeld and Keidan, whereupon the case was allowed to proceed to the English Court of Appeal. Although expressing sympathy for Steinfeld and Keidan’s predicament, the Lord Justices of Appeal refused to overturn the ban (see Steinfeld and Keidan v Secretary of State for Education  EWCA Civ 81).
The couple were then given leave to appeal to the UK Supreme Court.
On 27 June 2018, the Supreme Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary)  UKSC 32.
Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:
“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”
Following the Supreme Court’s decision, the UK Government of former Prime Minister Theresa May initiated steps to amend the Civil Partnership Act 2004 in respect of the law for England and Wales.
A link to an article about the change to the law in England and Wales on the Sky News website can be found below:
An interesting case which caught my attention recently seemed to raise many issues which I have been emphasising to my students who are preparing for their upcoming Discrimination Law exam this month.
The case (The Governing Body of Tywyn Primary Schoolv Aplin Case No 1600635/2016 ) seemed to cover (almost) the whole syllabus of the Discrimination Law unit:
A discrimination dismissal of a high flying professional employee (a head teacher)
A large sum of compensation awarded to the employee for the dismissal (nearly £700,000)
Direct discrimination on the basis of a protected characteristic (the employee’s sexual orientation) in terms Sections 4, 12 and 13 of the Equality Act 2010
The real problems faced by the employee in attempting to mitigate his losses (which the amount of the compensation award reflects)
Breach of disciplinary procedures by the employer
Breach of human rights i.e. Article 8 of the European Convention on Human Rights (right to privacy and family life)
Alleged reputational damage caused to the employer as a result of the employee’s conduct
The reversal of the burden of proof
The use of hypothetical comparators
Matthew Aplin is an openly gay man who was the head teacher of Tywyn primary school in Wales. He has been a teacher for 19 years and has an excellent professional reputation. In 2015, allegations about Aplin’s private life came to the attention of his employer (the School’s Board of Governors). It was alleged that Aplin had engaged in consensual sexual relationships with two 17 year old males that he had met through Grindr, the well known dating app. Users of Grindr must be aged 18 or over and, significantly, Aplin did not suspect the true age of the two males.
Aplin believed that the two young men were over 18 and, in any case, users of Grindr have to be aged 18 or over.
Following these allegations of alleged misconduct, Aplin was suspended and the Board of Governors commenced a disciplinary investigation.
At the request of the Governors, an investigating officer (Mr Gordon) was appointed by the local council. Mr Gordon’s terms of reference in respect of Aplin’s behaviour were as follows:
(a) had this brought the reputation of the School into disrepute?
(b) had it impacted on his ability to undertake the role of Head Teacher?; and/or
(c) had it demonstrated so gross an error of judgment as to undermine the School’s confidence in him and, therefore, to call into question his continuation in the role?
Mr Gordon quickly concluded that Aplin should be dismissed from his post despite the fact that this employee did not represent a possible threat to children. Local Police officers were briefly involved in their own investigation, but significantly they later concluded that no crime had been committed by Aplin.
Despite this, Aplin was dismissed for gross misconduct by the School Governors.
He promptly appealed against his dismissal, but the Governors did not deal with this matter efficiently or properly. Angered at the perceived lack of fair treatment of his appeal, Aplin decided to resign from his employment and claim unfair (constructive) dismissal; discrimination by reason of his sexual orientation; and interference with his right to respect for private and family life.
The Employment Appeal Tribunal (which became involved to deal with technical aspects of the case) later noted:
“There were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the disciplinary hearing.”
Ordinarily, the burden of proof lies upon the claimant (Aplin) to show that discrimination has taken place. In this case, there were enough factors present which meant that the burden of proof should shift to the respondent (the School Governors) who would now have to show that they had not discriminated against Aplin.
On the question of whether the burden of proof should be reversed, Judge Shanks in the Employment Appeal Tribunal had this to say:
“… in my view the thrust of it [the Tribunal’s reasoning] is clear and it provides a sufficient basis for the ET’s decision that the burden of proof had shifted on the question of whether Mr Aplin was treated unfavourably because of his sexual orientation.”
In arriving at this position, Judge Shanks was firmly of the view that:
“.. the Tribunal had rightly recognised that the background to the whole case was intimately connected with Mr Aplin’s sexuality; they then judge that the procedural failures by the School were so egregious that the inference could be drawn that there was more to it than simply the fact that he had had lawful sex with two 17 year olds; and they therefore considered that it would be possible, in the absence of any other explanation, properly to infer that he had been discriminated against because of his sexual orientation. That seems to me a perfectly acceptable line of reasoning.”
The decision of the Employment Tribunal
Aplin had been unfairly dismissed; and subjected to direct discrimination by reason of his sexual orientation.
As a point of interest, the case involved the use of hypothetical comparators to arrive at its decision, namely, would a heterosexual teacher (either male or female) who had sexual relations with two 17 year olds have been treated in the same way as Aplin? The Employment Tribunal concluded that such individuals would not have been treated any differently.
Interestingly, in its final judgement, the Tribunal found that, although a person’s sexual relationships are undoubtedly covered by Article 8 of the European Convention on Human Rights, it is not an absolute right. Such a right may be restricted or interfered with “where it is necessary for the protection of morals” in “a democratic society”:
“Thererefore, we consider that it is possible to conclude that in the circumstances of this case the claimant could have been disciplined for his admitted conduct within the qualification in Article 8(2). …
… However, a fair process would require the respondent to consider whether the claimant was aware that the individuals were 17 years of age. Further it would have to consider what the real risk of the issues becoming public were and therefore what the real potential for reputational damage was.”
The two 17 year olds were children in the eyes of the law and Aplin, as a Head Teacher, could be viewed as someone who was in a position of power and that position which could be abused by him.
As Aplin had admitted to his conduct (the relationships with the two males), the Employment Tribunal concluded that there was at least. 20% chance of him being dismissed successfully – had the proper disciplinary procedures been carried by the employer (which of course they were not). In this respect, Aplin suffered a 20% deduction in the overall compensation awarded to him as per the guidelines originally laid down in Polkey v AEDayton Services Ltd  UKHL 8.
Links to the decisions of the Employment Tribunal and the Employment Appeal Tribunal can be found below:
Yesterday, I tuned into Jeremy Vine’s daily show on BBC Radio 2 while out in the car and happened to catch an interesting discussion about potential discrimination and blood donation.
Ethan Spibey was a guest on the show and he was discussing his campaign to make it easier for gay and bisexual men to make regular blood donations. Mr Spibey is involved in a campaigning organisation called Freedom to Donate.
Readers of this Blog will be aware that I often discuss examples of actual or potential discrimination in terms of the Equality Act 2010.
Mr Spibey’s contribution to the Jeremy Vine show got me thinking about an issue – to which I readily confess hadn’t featured much on my radar previously: was the requirement or condition imposed by the NHS in this country making gay or bisexual men abstain from sex for 3 months before they are permitted to give blood an example of discriminatory treatment?
A link to Freedom to Donate’s Twitter account can be found below:
The discussion about restrictions on who can give blood got me thinking: would this be an example of direct and/or indirect discrimination in terms of Sections 13 and 19 respectively of the Equality Act 2010?
Direct discrimination occurs when someone experiences unlawful, less favourable treatment because they possess a protected characteristic (in this situation: sexual orientation).
As we shall see, gay and bisexual men are certainly placed at a distinct disadvantage in regarding the current restrictions on blood donation when comparing their situation to that of heterosexuals.
The National Health Service (NHS) is also applying a practice criterion or policy (PCP) which has a disproportionately adverse effect on men who are gay or bisexual.
Section 19 of the Equality Act defines indirect discrimination in the following terms:
A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’
Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:
(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.
In 2017, to much fanfare, NHS England announced that the previous 12 month abstention period for gay and bisexual men had been reduced to the current period of 3 months.
A link to a press release from NHS England can be found below:
Apparently, all blood donors are asked about their sexual orientation as part of the screening process. However … if you are a gay or bisexual man, then you are asked further questions about your sex life.
Needless to say this requirement does not apply to individuals whose stated sexual orientation is heterosexual.
Now, Ethan Spibey conceded that the paramount duty of the NHS was to ensure the safety of blood donations, but he was firmly of the view that heterosexuals could pose just as much of a threat to the health and safety of the beneficiary.
Are gay and bisexual men suffering as a result of a hangover from the 1980s when the fear of AIDS and HIV was omnipresent as the rather grim public information film from the time demonstrates?:
The current approach to blood donations, as campaigners like Mr Spibey would argue, results in a blanket policy which has a disproportionately adverse effect on gay and bisexual men. A person’s sexual orientation is, of course, a protected characteristic in terms of Sections 4 and 12 of the Equality Act 2010.
Health and safety can be used as an objective justification to defeat claims of discrimination, but it must be a credible defence. Do gay and bisexual men represent a greater threat to the safety and security of the nation’s blood supply? Clearly, the scientific evidence would have to be objective and credible to sustain this argument.
After listening to Mr Spibey, I was left with the impression that the scientific evidence for treating this group of people differently might not be so clear cut.
A link to a discussion on the BBC website about the issue can be found below:
We can all be guilty of pre-judging other people – sometimes we do this consciously and, at other times, we can do this unconsciously. In other words, we can reduce people to stereotypes.
This becomes a problem if our pre-conceptions about other people cause us to behave in a way that translates into unlawful, less favourable treatment. If we treat others less favourably due to a protected characteristic that they possess (e.g. age, disability, gender, race, sexual orientation etc) in terms of the Equality Act 2010.
Stereotyping or negative perceptions about individuals may well give rise to the victim (with the relevant protected characteristic) having a claim for direct discrimination in terms of Section 13 of the Equality Act 2010).
This recalled a story, from several years ago, in which the BBC reported the experiences of a gay man who was subjected to all sorts of less favourable treatment based on negative stereotyping of LGBTI people. The victim of this offensive behaviour took successful legal action against the individual in question.
A link to this story on the BBC News site can be found below:
Clive Coleman reports on the case of a gay man who has won the first compensation award for discrimination based entirely on homophobic gestures.
More recent examples of negative sterotyping
When glancing through various media stories over the last few days, stereotyping or negative perceptions of people came to mind.
In the first story, sufferers of Parkinson’s Disease spoke about the negative reactions they often experience when going about their daily lives. People with this very serious condition have reported that their symptoms are mistaken by members of the public as drunken behaviour or that they are acting under the influence of drugs. Individuals who suffer from Parkinson’s have a disability in terms of Section 6 of the Equality Act 2010.
Stuart Devlin, who has cerebral palsy, carries a card to show door staff after being refused entry to pubs.
In the third story, which hails from Russia, the Russian authorities have allowed prisoners to resume yoga exercises during the period of their incarceration.
Previously, the Russian Government had banned this form of exercise for prisoners because it was believed it was linked to homosexuality! In the UK, a person’s sexual orientation is a protected characteristic in terms of Section 12 of the Equality Act 2010.