The legal and social situation for lesbians, gay men and bisexuals is very different in different parts of the world. In some countries these groups of people enjoy full protection from discrimination, but in some countries homosexuality is still a crime punishable by the death penalty. Existing discrimination against lesbians, gay men and bisexuals at work has been confirmed by a study by the TUC in 1999. Out of some 450 trade unionists asked about their experience at work, no less than 44% reported that they had suffered discrimination because of their sexuality.
In the of worst cases this involved dismissal. Amnesty International states that: "at least 70 countries in the world have entered the 21st century with laws on their statute books prohibiting same- sex relations". This report provides evidence that lesbians, gay men and bisexuals all over the world still suffer persecution simply for being who they are. A move towards banning discrimination based on sexual orientation came when British lesbians, gay men and bisexuals serving in the armed forces, were successful in the European Court of Human Rights in challenging the ban of lesbians and gay men in the forces.
The Employment Equality (Sexual Orientation) Regulations 2003 are a result of the UK's implementation of the 2000 EU Employment Framework Directive requiring member states of the European Union to ban this type of discrimination. In June 2003, Parliament agreed on the new Regulations and Gerry Sutcliffe, DTI Employment Relations Minister stated that: "The new Regulations represent a significant addition to our domestic equality legislation and they will make a practical difference to the lives of millions of people".
We believe this new legislation to be a great turning point, being the first ever anti- discrimination legislation specifically banning discrimination on the grounds of sexual orientation- just one of the fundamental victories for lesbians, gay men and bisexuals that have been won on European level. Barrister – Your honours, I am acting on behalf of Jeffrey, against the Head Master at St Augustine's, Church of England school, and the Board of Governors. We are issuing proceedings, claiming for unfair dismissal. Can I begin by calling Jeffrey to the stand to get a clear picture of the situation in front of us.
Barrister – Can you please state your name for the court. Jeffrey – Yes, my name is Jeffrey Johnson. Barrister – Jeffrey, for the last five years you have been an employee at St Augustine's, Church of England school, am I correct? Jeffrey – Yes, I have worked as a caretaker there. Until the other day that is, when I was told by my boss, the Head Teacher, that they didn't want me to work there any more. Barrister – Do you feel that you were a competent worker Jeffrey? Jeffrey – Yes, I do. I took pride in my work and kept it up to a good standard.
I was very happy there and I thought that they were happy with me. I mean, I got on well with everyone, the pupils, the parents and the teachers. That's why it came as such a shock to me when they ended my contract. Barrister – Yes, so it was very sudden and unexpected? Jeffrey – Yes Barrister – Jeffrey, you are an active member of the town's Gay Community Association, yes? Jeffrey – Yes I am. The meetings are held at my flat every month so everyone is well aware of my sexuality. I've never kept it a secret. Barrister – So the school knew of your sexuality then?
Jeffrey – I assume so. I don't know how they couldn't have. We're a close community. Everyone knows everyone else's business if you know what I mean. It's common knowledge that the meetings are held at my flat. Barrister – Your flat got broken into recently Jeffrey. Do you think that was because of your sexuality? Homophobic youths perhaps? Jeffrey – I don't think so. There was no vandalism, which I'd expect if they were homophobic, you know, writing on the walls or something, but there was nothing. I think I was just unlucky that's all.
Barrister – So you don't feel anxious or in danger because of your sexuality. Jeffrey – No, I don't. Barrister – Lastly Jeffrey, how do you feel about your dismissal? Jeffrey – I feel hurt that they have judged me so much because of my sexuality. I can't change the way I am. It doesn't affect the way I do my job or the way that I treat people. They're entitled to their opinions, but I'm just sad that it has gone this far. Barrister – Thank you Jeffrey. There are no more questions. Barrister – On behalf of Jeffrey, we are claiming for unfair dismissal.
Unfair dismissal, in accordance with the Employment Rights Act 1996, section 104 (1) (b), can be defined as 'an employee who is discriminated shall be regarded for the purposes of this part as unfairly dismissed if the reason for the dismissal is that the employee alleged that the employer had infringed a right of his which is a relevant statutory right'. Section 94 (1) states that 'an employee has the right not to be unfairly dismissed by his employer'. In order for dismissal to be fair, four criteria need to be met, in accordance with section 98 (2) of the Employment Rights Act 1998.
However, in our view, theses criteria have not been met. The dismissal was based on Jeffrey's sexual orientation. This is covered by the Employment Equality (Sexual Orientation) Regulations 2003, which have recently been implemented within our justice system. To explain and outline this area of law, I would like to call an expert witness. Barrister – Why were the regulations introduced? Expert – They were introduced to prevent discrimination in employment and vocational training on the grounds of sexual orientation. They apply to recruitment, terms and conditions, transfers, promotion, training and dismissal.
Barrister – So what is sexual orientation exactly? Expert – Sexual orientation is covered under regulation 2 (1) and it is an orientation towards (a) people of the same sex (homosexuals), (b) people of the opposite sex (heterosexuals) and (c) people of the same and the opposite sex (bisexuals). Barrister – And what kinds of discrimination do they outlaw against? Expert – They cover direct discrimination, indirect discrimination, harassment and victimisation. Barrister – In your opinion would you say that Jeffrey has been discriminated against? And if so, which kind?
Expert – Yes, I do think that he has been discriminated against. I would say that it is a case of direct discrimination. Regulation 3 (1) (a) states that 'a person discriminates against another person if; on grounds of sexual orientation, he treats them less favourably than he treats or would treat other persons'. It is clear that the head teacher has treated Jeffrey less favourably by terminating his contract at the school, because of his sexual orientation (because he is a homosexual) and he would not have been dismissed if he were a heterosexual.