Unions to appeal against ruling on sexual orientation Regulations

UK trade unions are to pursue an appeal against a court ruling in April 2004 rejecting their legal challenge to certain key provisions of the Employment Equality (Sexual Orientation) Regulations 2003.

The Employment Equality (Sexual Orientation) Regulations 2003 came into force on 1 December 2003 and outlaw direct and indirect discrimination against, and harassment and victimisation of, people in employment and vocational training because of their sexual orientation (UK0312101N).

The Regulations are intended to implement the sexual orientation strand of the EU Directive establishing a general framework for equal treatment in employment and occupation (2000/78/EC). However, while generally welcoming the new rights contained in the Regulations, the Trades Union Congress (TUC) announced in September 2003 that it was coordinating a legal challenge in the High Court to two aspects of the Regulations, arguing that they did not fully comply with the EU equal treatment Directive and were incompatible with the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms.

In R (on the application of Amicus and others) v Secretary of State for Trade and Industry ([2004] IRLR 430), seven TUC-affiliated unions joined together to seek judicial review of Regulation 25 on the grounds that allowing pension schemes to continue to discriminate in favour of married people amounted to indirect discrimination against gay people, and Regulation 7(3) because it allows religious organisations to discriminate against gay people. The action was heard by the High Court in March 2004, and judgment was handed down on 26 April.

The court ruled against the unions on both counts. However, in his ruling, the judge stated that the exemption for religious organisations needed to be construed very narrowly, specifically that it can apply only to ministers of religion and was not likely to apply to employment in a religious school. This therefore dealt with most of the unions’ concerns about Regulation 7(3). On the provision allowing benefits to be restricted to married couples (Regulation 25), the judge also ruled against the unions on the basis that the provision was permitted by a recital in the Directive or, alternatively, that married couples are not in a comparable position to unmarried couples so the provision does not offend the principle of equal treatment. However, he left the way open for an appeal to the Court of Appeal on this issue. According to the TUC, on the basis of legal advice received, five of the unions have lodged the papers for such an appeal.

The TUC’s annual congress on 13-16 September 2004 is to consider a motion put forward by the TUC’s lesbian, gay, bisexual and transgender conference. This congratulates the unions involved in the appeal, urges the TUC general council and affiliated unions to support the appeal and any subsequent appeal to the European Court of Justice that may be required, and calls for financial support for the legal action from both within the trade union movement and more widely.