Sexual orientation discrimination

Overview

• The applicable law is the Equality Act 2010 which consolidates all previous discrimination law (e.g. the Employment Equality (Sexual Orientation) Regulations 2003) into one Act.
• Sexual orientation is one of the nine 'protected characteristics' under the Act.
• The definition of sexual orientation discrimination covers sexual orientation towards persons of the same sex, persons of the opposite sex or persons of the same sex and the opposite sex.
• Gay and lesbian employees are covered as are heterosexual and bisexual employees.
• Job applicants and the wider group of workers are all covered.
• The law applies to recruitment, terms of employment, employment benefits, promotion, access to training, dismissal, post-termination discrimination and harassment.

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Types of discrimination

• The law protects against sexual orientation discrimination by making the following grounds of discrimination unlawful:
  • discrimination against an individual
  • harassment and victimisation
  • direct discrimination - it is only permitted where the employer can demonstrate that being of a particular sexual orientation is an occupational requirement
  • indirect discrimination - but it can be justified if it is a proportionate means of achieving a legitimate aim
  • gender reassignment, e.g. someone who is born physically male but decides to live permanently as a woman
  • post-termination discrimination.

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Discriminatory acts

• Treating a worker or job applicant less favourably than another worker or job applicant on the basis of his or her sexual orientation is direct discrimination.
• Discrimination based on a perception of a person’s sexual orientation is unlawful (even if the perception is mistaken).
• Discrimination based on association is also unlawful, e.g. if the individual has a gay friend.
• Indirect discrimination is also unlawful. This is defined as applying a provision, criterion or practice which puts (or would put) persons of a certain sexual orientation at a particular disadvantage when compared to others and which is not a proportionate means of achieving a legitimate aim.
• An example of indirect discrimination is a pub seeking to employ a married couple to run it; this would discriminate against gay couples.

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Harassment

• Harassment that is related to the protected characteristic of sexual orientation is unlawful.
• Harassment is defined as unwanted conduct which has the purpose or effect of violating the dignity of the individual or of creating an intimidating, hostile, degrading, humiliating or offensive environment. This includes verbal abuse, a work environment where homophobic comments are tolerated, and intentional and unintentional acts.
• The test for harassment includes an objective as well as a subjective test. This means that an oversensitive employee who takes offence unreasonably will not be able to bring a valid claim.
• Employers are liable for acts of harassment committed by workers during the course of employment and by third parties.
• Employers can defend themselves by showing that they have taken all reasonably practicable steps to prevent the harassment occurring. This must be more than simply having an equal opportunities policy; there must be evidence that the policy is effective in practice, that it has been clearly communicated to all staff and that training has been given to all staff.
• The 'three strikes' rule applies to the protected characteristic of sexual orientation - an employer cannot be held responsible unless it knows that the employee has experienced third-party harassment on at least two previous ocassions (although the perpetrator need not be the same person on all three ocassions).

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Occuptional requirement

• Discrimination is permitted where being of a particular sexual orientation is an occupational requirement, e.g. a counsellor on a gay helpline.
• It is not enough for an employer to simply to decide that they would prefer to employ someone with a particular sexual orientation - it must be an ‘occupational requirement’, i.e. the requirement must be crucial to the post, and not merely one of several important factors.
• The word ‘occupational’ means the requirement must relate to the nature of the job in question, rather than the nature of the employing organisation.
• Even if possessing a particular characteristic is an occupational requirement, the employer still has to show that applying the requirement is a proportionate means of achieving a legitimate aim. The test will not be satisfied if it would have been reasonably possible to achieve the result in some other way.

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Remedies

• An individual who believes they have been treated unlawfully on the grounds of sexual orientation can complete a questions form to help them get information from their employer. Failure to respond to such questions or giving misleading answers will lead a tribunal to draw adverse inferences.
• A claim must be brought within three months of the discriminatory act.
• There is no minimum length of service necessary to bring a claim.
• A tribunal can make a declaration that there has been unlawful discrimination; a recommendation that an employer takes specified steps to obviate or reduce the effect of any discrimination (this can include such things as telling the employer to retrain its staff or publicise its selection/promotion criteria); and/or make an award of compensation (which is uncapped).
• If the employee proves differential treatment which could have been on the grounds of sexual orientation, the employer must prove that there was some other ground and no discrimination occurred.

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Resources

ACAS

• Sexual Orientation and the Workplace
• Audit tools for sexual orientation

• Discrimination on the Grounds of Sexual Orientation

Other

• Stonewall - lesbian, gay and bisexual charity

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