Six unions have sought a judicial review of the Equality (Sexual Orientation) Regulations 2003, backed by the TUC, because they believe that they are not being implemented as they should be under the EU Employment Equality Framework Directive.
The unions (including the likes of Amicus, UNISON, and the transport union the RMT) argue that aspects of the regulations, which came into force last December, have actually ended up discriminating against them. “The sexual orientation regulations have made a real difference, giving gay people proper legal protection at work for the very first time,” commented TUC General Secretary Brendan Barber. “But it’s a pity that what should have been a cause for union celebration has been dampened by the Government’s decision to bar lesbians and gay men from receiving pensions from certain schemes.” What was “essentially a good law” was made less effective than Europe intended it to be, he said.
The most significant aspect of the legal challenge is based around regulation 25 which relates to pensions. The unions believe that because it allows UK pension schemes “to continue to discriminate in favour of married people, the regulation is allowing indirect discrimination against gay people as they are not able to marry their partners”. Most public sector schemes still only give benefits to married partners, and around a quarter of private sector pensions schemes do not provide pensions to unmarried partners. The unions are also arguing that apart from a misinterpretation of the EU Framework Directive, the proposed regulation may also be a breach of the Human Rights Act 1998.
A further aspect of the unions’ legal challenge relates to regulation 7(3) which allows for sexual orientation discrimination where someone works for an organised religion. The unions are arguing that the law may allow employers to stop gay, lesbian or bisexual people from working at church schools and other religious organisations such as voluntary groups.