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Law Guide

Sexual orientation discrimination

Contents

Introduction

The Equality Act 2010 makes it unlawful for an employer to discriminate against a worker because of their actual or supposed sexual orientation, or their association with people of a particular sexual orientation. It covers all aspects of the employment relationship, including recruitment, pay, working conditions, training, promotion, dismissal and references.

Protection against sexual orientation discrimination applies to employees, contract workers, office holders, partners of firms and people using employment agencies or related careers guidance services.

What is sexual orientation?

The Equality Act 2010 defines sexual orientation as a sexual orientation towards persons of:

  • The same sex (homosexual)
  • The opposite sex (heterosexual)
  • The same and the opposite sex (bisexual)
This means that the regulations protect lesbians, gay men, bisexuals and heterosexuals.

Types of sexual orientation discrimination

Direct discrimination

This is where a worker is treated less favourably because of their sexual orientation, when compared with another worker (known as a 'comparator') of a different sexual orientation, but who otherwise shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

  • Your perception of their sexual orientation, regardless of whether or not the perception is correct. For example, if you refuse to promote an employee because you believe him to be homosexual, but you promote a colleague whose circumstances are similar to the employee, except that you do not have the same perception about their sexual orientation
  • The sexual orientation of another person (also known as discrimination by association). For example, if you treat an employee less favourably because they have gay friends or have refused to comply with instructions that would require them to discriminate against someone because of their sexual orientation
You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

You cannot defend against a claim of direct sexual orientation discrimination by 'justifying it' (arguing that your actions were a proportionate means of achieving a legitimate aim). There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required in order to comply with another law, or a genuine occupational requirement applies to the job.

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

Indirect discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all the workers in the workplace which puts members of a group with a particular sexual orientation at a particular disadvantage when compared with other workers and a worker within that group suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

For example, you introduce a policy stating only employees who are biological parents may go on a child-care training course. This policy may result in homosexual employees suffering a disadvantage when compared to heterosexual employees, as homosexual employees are less likely to have given birth to or biologically fathered children, but may have adopted them. In this case, a homosexual employee would have been eligible to go on the training course had it not been for that policy.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if it can be shown that its application is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived sexual orientation, or association with someone who is homosexual, heterosexual or bisexual. This applies to any conduct that violates a worker's dignity, or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment, if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is treated less favourably because:

  • They have asserted their right under the sexual orientation discrimination regulations not to be discriminated against
  • They have given evidence or information in a complaint of sexual orientation discrimination made by another worker
  • They have taken any other action under legislation protecting them from sexual orientation discrimination
  • They have alleged that you or any other worker has contravened legislation affecting sexual orientation discrimination
  • You believe that they have done or may do any of these things
For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned action.

Exceptions

There are a few exceptional circumstances where discrimination on the basis of sexual orientation will not be regarded as unlawful. Some of these are:

  • Organised religion – an employer may require an applicant to be of a specific sexual orientation for certain reasons when the employment relates to an organised religion.
  • Genuine occupational requirement – an employer may require an applicant to be of a particular sexual orientation where that is a requirement to be able to do the job properly.
Positive action

Positive action in training and applying for particular positions

If you reasonably think that a group of your workers who share a protected characteristic (race, age, sex, sexual orientation, marital or civil partnership status, gender reassignment, pregnancy and maternity, disability or religion or belief)...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in your workforce,
...then you can take any proportionate action that enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

You are allowed to provide special training to members of the group. You can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless you meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. You will be able to take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • You do not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Employment Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

See the Acas guide for employers and employees in respect of sexual orientation and the workplace. More information is also available at the Gov.uk website.

The Equality and Human Rights Commission (EHRC) have a number of employer guides regarding your obligations under the Equality Act 2010.