Sexual Orientation Discrimination in the Workplace

Introduction

Sexual orientation is one of the nine protected characteristics covered by the Equality Act 2010 (the Act). The Act protects against direct and indirect discrimination, victimisation and harassment on the grounds of sexual orientation including perceived sexual orientation and/or the sexual orientation of someone with whom the person is associated. 

An employer is liable for discrimination or harassment by employees against each other unless it has taken reasonable steps to prevent this taking place. The perpetrator may also be liable. There is no limit on compensation that may be awarded in a successful discrimination claim and there is no qualifying service requirement.  

What is sexual orientation?

Sexual orientation means a person’s sexual orientation towards persons of the same sex (the person is a gay man or a lesbian), persons of the opposite sex (the person is heterosexual) or persons of either sex (the person is bisexual). It relates to how people feel as well as their actions and covers discrimination connected with manifestations of that sexual orientation. The Equality and Human Rights Commission Code of Practice (EHRC Code) notes that this includes someone’s appearance, the places they visit or the people they associate with.

It is also important to note that gender reassignment is a separate protected characteristic and is unrelated to sexual orientation.  

Who is covered under the Equality Act?

The Act protects job applicants and those “in employment”, which is widely defined and includes employees, workers and some independent contractors where they are obliged to provide their work personally. There are some limited exceptions where sexual orientation discrimination is permitted see below.

What is sexual orientation discrimination?

Direct sexual orientation discrimination

Direct sexual orientation discrimination takes place where the employer treats a job applicant or employee less favourably than others because of sexual orientation. An example in the EHRC Code is where at a job interview an applicant mentions that she has a same sex partner.  Although she is the most qualified applicant for the job, the employer offers it to a heterosexual woman instead. If the reason for offering the job to the other candidate is because of her sexual orientation, this amounts to direct discrimination.  This cannot be justified unless there is an occupational requirement that applies.  

Case examples include where an experienced bar manager applied to run a pub. On being asked if he had a wife or girlfriend, he replied that he was gay and had a long-term partner. The pub owner refused to employ a gay couple on the basis that it would be disastrous for his business. This was held to be direct discrimination. In another case a heterosexual woman was made redundant from a mainly gay bar. The employer subsequently employed male gay bar staff. The tribunal was not satisfied that there was a genuine redundancy and found her dismissal was direct discrimination on grounds of sexual orientation.  

Association and perception are also covered therefore, if someone is treated less favourably because of the sexual orientation of someone they associate with, e.g. they have gay friends, this would be direct discrimination. The same is true where an employer treats an employee less favourably because it perceives them to be of a certain sexual orientation.

Indirect sexual orientation discrimination

The concept of indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging particular groups. Unlike direct discrimination, it is possible to justify indirect discrimination where the employer can show that it has a legitimate aim and the provision, criterion or practice is a proportionate means of achieving that aim.

Sexual orientation harassment

Harassment in the workplace is defined as unwanted conduct related to sexual orientation which has the purpose or effect of violating the dignity of the person involved, or where it creates an intimidating, hostile, degrading, humiliating or offensive environment for them.  

Harassment “related to” sexual orientation covers the claimant’s own sexual orientation, their perceived sexual orientation and/or the sexual orientation of someone with whom the claimant is associated. Protection would cover subjecting an employee to homophobic banter and name-calling regardless of the individual’s own sexual orientation and would also cover telling jokes about gay people that colleagues find offensive regardless of their own sexual orientation. The EHRC Code gives the example of a worker who is subjected to homophobic banter and name calling even though his colleagues know he is not gay.  Because the form of abuse relates to sexual orientation, this could amount to harassment related to sexual orientation.

While the conduct must be unwanted, it is not necessary for the complainant to have previously indicated that they did not want such conduct. It will be for the Tribunal to assess whether the conduct is in fact unwanted.  A one-off incident can amount to harassment. “Outing” someone without their clear permission may also constitute harassment.

Sexual orientation Victimisation

An employer victimises an employee if it subjects the employee to a detriment because the employee has done, or might do, a protected act. Protected acts are:

• Bringing proceedings under the Act
• Giving evidence or information in connection with proceedings under the Act regardless of who brought the proceedings
• Doing any other thing for the purposes of or in connection with the Act
• Alleging that a person has contravened the Act.

Clash of protected rights

Conflict between different protected characteristics arises most frequently as a result of traditional views on homosexuality and religious beliefs. We have examined this in more detail in our Insight Clash of Protected Rights in the Workplace.

Sexual Orientation Exceptions

There are a number of occupational requirement exceptions that an employer may be able to rely on but these are applied restrictively and employers should ensure that they do not have a blanket policy of applying an occupational requirement exception. The key ones for employment are:

• Occupational Requirement (general) whereby an employer can stipulate in certain limited circumstances that because of the nature or context of the work, only people of a particular sexual orientation can do it. This must arise out of the “nature” of the job and it is rare that an occupational requirement will apply in this way.
• Organised religion whereby the employer must be able to show that the application of the requirement that someone is of a particular sexual orientation is to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers. The nature and purpose of the role is the important factor, not that the employer must be an organised religion or a religious body. The requirement must be a proportionate way of meeting those principles.

What should employers do?

In order to defend a sexual orientation discrimination claim and demonstrate it has taken reasonable steps to prevent discrimination happening employers should ensure they have in place policies and train staff on them. In particular they should have a Diversity, Equity and Inclusion policy which promotes a workplace culture that values difference and eliminates discrimination as well as an anti-harassment and Dignity at Work policy that makes clear what constitutes harassment and that it takes a zero-tolerance approach. These policies should be promoted and publicised as widely as possible. Those who are harassed should also be encouraged to use the employer’s Grievance Procedure.  

Senior management should ensure the policies are implemented proactively through staff training on how to deal with incidents of sexual orientation harassment and also ensure that where appropriate the perpetrators are dealt with under the Disciplinary procedure.  

Policies should also be resourced, monitored and reviewed to ensure there is regular reporting on their effectiveness.

Our expertise

We advise on all aspects of employment law including on issues relating to sexual orientation discrimination and harassment in the workplace. We help employers to put in place the policies and procedures to support their employees and business with confidence. We advise on how to prevent issues arising and how to handle them if they do through our employment investigations service.  

We use our exceptional breadth and depth of experience to give clients personalised advice to help manage risk and resolve issues as well as bespoke training tailored to your needs together with the use of our independent HR consultants to put in place systems to monitor, review and minimise the risk of claims.

Please contact Michael Powner or your usual Charles Russell Speechlys contact if you would like more information.