Statutory provisions that can have a discriminatory impact on individuals due to their sexual orientation have steadily been eradicated. However, some remain and, in an important ruling concerning a gay member of the Royal Navy, one was identified by an Employment Tribunal (ET) (XA v The Royal Navy – Ministry of Defence).
The man objected that services personnel who are married or in civil partnerships and who live with their partners are given a greater choice of living accommodation than those who are single or living apart from their spouse or civil partner. That was said to cause serious disadvantage to gay personnel, who are statistically far less likely either to be married or in civil partnerships or to live with their spouses or civil partners in services accommodation.
He brought claims of indirect sexual orientation discrimination against the Ministry of Defence (MoD). The MoD, however, pointed to Paragraph 18(2) of Schedule 9 of the Equality Act 2010, which excludes any claim of indirect discrimination in respect of benefits provided to personnel who are married or in civil partnerships due to their marital status. On the basis that Paragraph 18(2) provided it with a complete defence, the MoD argued that the man's claim had no realistic prospect of success and should be struck out.
Rejecting those arguments, however, the ET noted that Paragraph 18(2) expressly provides that a provision, criterion or practice which would contravene the European law ban on sexual orientation discrimination is not to be treated as discrimination. It was therefore incompatible with Articles 1 and 2(a) of the Framework Directive 2000/78 and Article 21 of the Charter of Fundamental Rights of the European Union.
It was not possible to interpret Paragraph 18(2) in a manner that would render it compatible with European law and the ET ruled that, in the context of the man's claim, it should therefore be disapplied. The ET's decision opened the way for the man to pursue his claim to a full hearing.
We can assist you in dealing with any issues arising in regard to discrimination. Contact us on 08081668860.
 |
 |
 |
 |
 |
 |
|
