Sexual Orientation Discrimination

Specific regulations were introduced in 2003 to protect workers from discrimination on the grounds of sexual orientation. For the purposes of the regulations the phrase “sexual orientation” means heterosexual, homosexual, and bisexual orientation. An important point to note is the fact that the regulations prohibit discrimination “on grounds of sexual orientation” NOT just of their and actual sexual orientation. This means that an individual is protected against discrimination referring to the actual or perceived sexual orientation of that person and the sexual orientation of persons associated with that person.
Examples of how this applies are given below:-

Example 1

A heterosexual employee who appears to his/her employer or colleagues to be homosexual and is subjected to homophobic abuse and teasing is protected under the regulations in respect of that homophobic teasing and abuse as it refers to the employer’s and/or colleagues perception of his/her sexual orientation.

NB. A decision in the Court of Appeal, reached in December 2008, confirms that if a heterosexual person is the victim of homophobic verbal abuse from colleagues, even if the colleagues know that the person is heterosexual rather than homosexual, that person will still be protected under the law, and will have a valid claim of sexual orientation discrimination against his/her employer arising from the homophobic verbal abuse.  

Example 2

A heterosexual employee who the employer knows to be heterosexual is denied promotion because he/she socialises with homosexual employees. This is discrimination because relates directly to the sexual orientation of this employee’s fellow employee’s.

Example 3

An employee denies a bonus payment to an employee because he sees him/her leaving a gay bar one evening. The employee is in fact heterosexual, and was there with friends; but the employer assumes he/she is homosexual. This is discrimination on the ground that the employee’s perceived sexual orientation, and so is unlawful.

In order to establish that unlawful discrimination has occurred, the person bringing the allegation, the complainant, needs to demonstrate that a comparator of a different sexual orientation would have been treated more favourably than the complainant was. There need not be an actual person that the complainant relies upon as the comparator, a hypothetical comparator with the necessary attributes will surfice. In these cases the actual or hypothetical comparator must be a person who is in all relevant circumstances the same as the complainant but is of a different sexual orientation.

Direct Discrimination

This would include denying training or promotion, and refusing to employ someone, and dismissing someone because they are (or are perceived to be) of a particular sexual orientation, or because they associate with someone of a particular sexual orientation.

Indirect Discrimination

This form of discrimination occurs if the employer:-

1. Applies an apparently neutral provision, criterion, or practice which it applies or would apply equally to person B, who is not of the same sexual orientation as person A; and
2. The provision, criterion, or practice puts, or would put, persons of the same sexual orientation as person B at a particular disadvantage when compared with other persons; and
3. Person B suffers a disadvantage.

Any claim of indirect discrimination can be defended by the employer if it can show that the provision, criterion, or practice in question is “a proportionate means of achieving a legitimate aim” – i.e. a proper business need.

Harassment

Harassment on grounds of sexual orientation happens when an employer subjects person B to unwanted conduct on the grounds of sexual orientation, which has the purpose OR effect of violating B’s dignity OR creating an intimidating, hostile, degrading, humiliating or offensive environment for B. The harassment need not be intentional. Any unintentional harassment can still give rise to a claim from the victim of that behaviour. A point often overlooked is the fact that the regulations apply equally to the harassment of heterosexual people as they do to homosexual or bisexual people. Obvious examples of unlawful harassment include inappropriate body language, homophobic abuse, rude or suggestive remarks about a person’s sexuality, or taunting.

Employers should note that they may be held responsible, and liable for such harassment conducted by their employees, even if they do not participate or condone it themselves. In order to defend themselves from such liability employers have to be able to prove that they have taken such steps as far as reasonably practicable to prevent the particular employer from causing or committing the harassment.

Victimisation

This type of discrimination is probably better described as “retaliation”. Victimisation occurs if a person is subjected to some form of unfavourable treatment, (e.g. demoted, dismissed, disciplined, refused a bonus, denied promotion, etc) because he/she:-

a) Has brought proceedings (e.g. in an employment tribunal) against his/her employer or any other person, or

b) Has given evidence or information in connection with any proceedings brought by any person against his/her employer, or

c) Has alleged that his/her employer or any other person has committed an unlawful act under the regulations.

Protection from sexual orientation discrimination extends to job applicants, contract workers, and partners in a business partnership as well as to employees.

In order for employers to ensure compliance with these regulations they should introduce and implement an Equal Opportunities Policy (link PAYG Equal Opportunities Policy), which must specifically refer to discrimination on grounds of sexual orientation. All managers should receive training on how to implement the policy fairly and properly.