When the Criminal Justice and Immigration Bill received its second reading in the House of Commons this week Jack Straw, the Justice Secretary, outlined plans to include a clause in the Bill making it a criminal offence to incite hatred against persons on the grounds of sexual orientation or perceived sexual orientation. The full details of the offence have not yet been revealed but it is understood that the offence will carry a maximum sentence of seven years’ imprisonment.

Mr Straw said, “It is a measure of how far we have come as a society in the past ten years that we are now appalled by hatred and invective directed at people on the basis of their sexuality and it is now time for the law to recognise the feeling of the public”.

The new crime will cover incitement of hatred against homosexual, lesbian and bisexual people, and the Government will be seeking views on whether to extend the offence to cover hatred of transgender and disabled people. It is reported that prosecutions will be brought only with the agreement of the Attorney General.

What these proposals mean to employers

Since December 2003, it has been unlawful to discriminate against employees on the grounds of their sexual orientation under the Employment Equality (Sexual Orientation) Regulations 2003. This means any victimisation, bullying, harassment or any other less favourable treatment on the grounds of sexual orientation is unlawful. It is also unlawful to discriminate against an individual because of their association with homosexuals, for example.

It is likely that the proposed new offence will follow along the same lines as the new offence of “stirring up hatred against persons on religious grounds” under the Racial and Religious Hatred Act 2006, which became law on 1 October this year. If the proposed offence becomes law, certain acts in the workplace which amount to discrimination under the 2003 Regulations could also constitute a criminal offence under the proposed new law. Once more detail of the proposed offence is known, employers should review their equal opportunity policies to take account of the new offence. Managers should be made aware of the new law and you may wish to consider arranging equal opportunity refresher training for this purpose. As well as helping to avoid discrimination claims, an active approach to potential discrimination issues can assist in defending future claims centred on the discriminatory acts of managers and other fellow employees.