Sexual Orientation Discrimination: Guide for Employers

Sexual orientation is one of the protected characteristics under the Equality Act 2010. The Act protects lesbian, gay and bisexual people from direct discrimination, indirect discrimination, harassment and victimisation at work. These rules also apply to anyone who is perceived to be lesbian, gay or bisexual or experiences discrimination because they associate with gay people.

These rules apply to all employers, regardless of the number of staff they employ or the amount of money they make. They apply in all stages of employment including:

• Application
• Interview
• Any probation or notice period
• Any incident during  employment
• Any promotion, training or support opportunity

The rules apply to all paid employees including:

• Those with full time contracts
• Those with temporary contracts
• Contract workers (unless they are genuinely self-employed)
• Partners
• In most cases, agency staff
• Vocational trainees
• Work experience students

 

Direct sexual orientation discrimination at work

Under the Equality Act 2010 an employer cannot refuse a job, promotion or any training opportunity to an employee on the basis of their sexual orientation.

The only time it would be possible for this to be justified is when there is a reason why, considering the nature or context of the work, being of a particular sexual orientation is an occupational requirement. An employer would usually have sought legal advice before including a genuine occupational requirement as part of a role description. They would need to include these details in the initial application information. In practice, it would typically be rare for an employer to be able to demonstrate a genuine occupational requirement in cases involving sexual orientation.

Direct discrimination also refers to unfair treatment due to being associated with someone who is lesbian, gay or bisexual. This can include a friend, relative or colleague. An employer cannot refuse a job, promotion or any training opportunity to an employee on the basis of the sexual orientation of someone they know.

Under the Equality Act 2010 an employer cannot offer different employee benefits or treat staff differently on the basis of their sexual orientation. If heterosexual staff are able to talk openly about their personal lives and can invite their partners to work events or work related activities then there should be no reason why a lesbian, gay or bisexual employee cannot be open about their personal life.

Direct discrimination can be measured by comparing the situations of two employees. These employees should be in comparable situations except one is gay and the other is heterosexual.

The employee would need to ask their manager why they made this request. If the reason given is equally applied to both employees it would be difficult to show discrimination. If the reason will clearly affect the gay employee and not the heterosexual employee this will be discrimination.

All employers, regardless of how many people they employ, should work to ensure their policies and procedures are inclusive and the language used within them reflect this. If certain privileges are offered on the basis that an employee is married then this must extend to those in civil partnerships.

 

Positive action

In limited circumstances, employers may be able to rely on positive action as a defence of discrimination. It is only justified when an employer has two candidates of equal merit; and can show that a particular group is underrepresented in the work place or faces a particular disadvantage in it. To justify such a decision, the employer would need to carefully monitor diversity in the work place and engage in positive action on a case by case basis. A blanket policy of recruiting from particular groups would generally be unlawful.

 

Indirect sexual orientation discrimination

Under the Equality Act 2010 it is unlawful for an employer to follow a policy, criterion or practice which places lesbian, gay or bisexual people at a particular disadvantage. As it is less likely for lesbian, gay or bisexual people to have children or young families it means they are more likely to be given the unsociable shifts. Whilst the policy appears to treat all employees equally in practice it places lesbian, gay and bisexual staff at a particular disadvantage.

As this conduct amounts to indirect discrimination rather than direct discrimination, in certain circumstances, such a policy may be justified. The employer would need to show that it is a proportionate means of achieving a legitimate aim, such as encouraging women returning from maternity leave to come back to work. In these types of cases, the rights of different groups need to be considered alongside each other to deliver the fairest outcome.

 

Sexual orientation harassment

Bullying on its own isn’t actually against the law, however, harassment is. Harassment includes bullying if it relates to a protected characteristic. Harassment can include:

• Jokes or banter
• Insults or threats
• Unnecessary and degrading references to someone’s sexual orientation or their perceived sexual orientation
• Excluding someone from activities or social events
• Spreading rumours or gossip including speculating about someone’s sexual orientation or outing them
• Asking intrusive questions

 

Some people may say this is ‘just banter’ and not meant to upset anyone but if an employee feels they are being targeted because of their sexual orientation or their perceived sexual orientation and this makes them feel intimidated, degraded, humiliated or offended then this behaviour can be defined as harassment and would be unlawful under the Equality Act 2010.

The rules made under the Equality Act 2010 protect people from discrimination and harassment on the basis of sexual orientation even if that person’s sexual orientation is not known or if that person is wrongly perceived to be gay. The key elements to look at are the behaviour and the motivation for that behaviour. His employer should have in place a confidential mechanism by which he can challenge this kind of behaviour with his management without having to come out.

 

Sexual orientation victimisation

If an employee can show that they are being treated differently because they have issued a grievance and that treatment is less favourable compared to other employees, this could be classed as victimisation and would be unlawful.

Complaints of victimisation need to be made separately to any previous or ongoing grievances. Due to the nature of victimisation it can feel difficult to challenge or prove. However, employers have a duty to look into complaints and address behaviour. It may be best to try and address victimisation directly or informally with a manager. If this is unsuccessful it is possible to follow a formal grievance and tribunal action.

 

Why employers need to be proactive

If an employee is being bullied or harassed, they should first attempt to remedy the issue informally. If this does not work or is not possible, they should discuss the issue with their manager or if necessary, contact the human resources (HR) department or a trade union representative and keep records and notes of the circumstances, comments, timeline and events.

If the problem still isn’t resolved they can make a formal complaint using their employer’s grievance procedure. Employers should take these issues seriously as employees can escalate this further and if there is still an issue, legal action can be taken at an employee tribunal. If the harassment is outside of work by a colleague this can still be addressed and accepted as an employment grievance. Additionally, if the harassment becomes threatening or physical it can also be reported to the police.

If an employee is treated less favourably as a result of their sexual orientation, for example, by their employer or the grievance is taken less seriously this could expose the employer to a claim for discrimination, failing to follow a fair process and ultimately constructive (unfair) dismissal.

 

How employers can manage workplace discrimination

Employers are responsible for creating and maintaining a safe workplace which includes preventing bullying, intimidation and harassment and are liable for any harassment suffered by their employees. Employees are protected by a combination of policies and legislation. It is important various factors and actions are considered to protect all staff members. This can be through the below:

 

Creating a strong culture

Workplace discrimination can be managed by ensuring the organisation has a strong ethos which is built on a diverse and accepting work force. A company can help to reduce homophobic, bi-phobic and transphobic bullying by creating and enforcing clear policies as well as expressly stating support for diversity amongst employees. This can also be assisted with training, seminars, newsletters and various pro-active ways to promote equality.

 

Being firm

Discrimination is an issue which must be tackled head on. Companies must clearly make it known that they are diametrically opposed to this behaviour from the outset showing they are ready to take action by reacting to complaints swiftly, openly and fairly. Positive reinforcement in the benefits of a diverse work force, combined with a firm stance against bullying, will help reinforce that any discriminatory behaviour will not be tolerated.

 

Being clear

In order to reduce bullying and discrimination, employers need to have clear policies and staff handbooks addressing grievances, disciplinary and discrimination so it’s clear to all staff. It’s also favourable to educate staff on diversity and inclusion to create a mutual understanding of unacceptable behaviours and treatment, leaving no room for misinterpretation.

 

Setting a good example

The company ethos of acceptance should be demonstrated by senior staff setting positive examples and addressing any negative or discriminatory behaviour immediately. In addition, LGBT+ staff networks and visible LGBT+ role models and allies in leadership positions will help to demonstrate that companies are championing a diverse workforce. This will also make it less likely for members of staff to feel alienated.
Everyone deserves to be treated equally and with respect. Equality should be demonstrated to all staff, regardless of race, religion, sexuality, gender identity or perceived sexual orientation.

 

Need assistance

DavidsonMorris’ employment law specialists advise employers on all areas of discrimination and avoiding unlawful discrimination practices and exposure to complaints. Through our fixed-fee employment law service, Triple A, employers can access unlimited legal advice. for more information about Triple A or sexual orientation discrimination at work, Contact us for expert advice.

 

Sexual orientation discrimination FAQs

What is sexual orientation discrimination in workplace?

It's against the law for an employer to discriminate against someone because of their sexual orientation.

What are the types of discrimination?

In the UK, the types of discrimination that are unlawful are age; gender reassignment; being married or in a civil partnership; being pregnant or on maternity leave; disability; race including colour, nationality, ethnic or national origin; religion or belief; sex.

What is sexual orientation?

Sexual orientation refers to a person’s attraction to people of the same sex, the opposite sex or either sex. It does not cover particular sexual practices or preferences for particular types of sexual activity.

Last updated: 3 March 2024