content top

Sexual Orientation Discrimination

Although there are no accurate statistics for the number of lesbians, gay men or people who are bisexual - it is believed that they make up ab out 7% of the UK population. Despite this there continues to be a considerable prejudice against those with different sexual orientation. The Employment Equality (Sexual Orientation) Regulations 2003 were introduced to help tackle this although even with these protections many Lesbian Gay and Bisexual (LGB) people are still are not willing to be open about their sexuality - either because they fear criticism or abuse from colleagues or because they believe that it will harm their chances of promotion. This section looks at the rights which they have in the workplace.

Introduction

The Employment Equality (Sexual Orientation) Regulations 2003 make it unlawful to discriminate against a person, either directly or indirectly or to harass or victimise them on the grounds of their sexual orientation. The regulations apply to both the public and private sector and cover a wide range of situations within the workplace, including recruitment, promotion, dismissal, pay, working conditions, training, references and partnerships.

The law applies to everyone, whether they be heterosexual, gay male, lesbian or bisexual, and a claim can arise equally from a heterosexual person being discriminated against as it can a gay person. Discrimination can occur arise because they have not been afforded the same benefits or because they have been offended, whether intentionally or unintentionally, by comments relating to their sexuality made by colleagues or others. Discrimination can even occur where someone is discriminated against because of their perceived sexuality. Thus if a person is treated less favourably because they are wrongly believed to be LGB then they may have a claim. However, this might not be the case if the person is known not to be LGB but is subject to homophobic harassment, no matter how offensive. The person would need, at least until the law is changed, to consider a claim under the Protection from Harassment Act 1997, instead.

There are essentially four ways in which a person can be discriminated against:

  • Direct discrimination – where, for example, the discrimination is specifically aimed at one particular person
  • Indirect discrimination – where a criteria or policy is applied in such a way that those either of, or not of, a particular orientation are treated less favourably
  • Harassment – where a person is subject to unwanted behaviour by reason of their sexual orientation, and
  • Victimisation – where a person is treated less favourably because they have attempted to assert their rights under the sexual orientation legislation.

You should note also, however, that the scope of the discrimination legislation was substantially extended in 2005 with the introduction of the Civil Partnership Act which gave legal recognition to same-sex couples and in 2007 when the Employment Equality (Sexual Orientation) Regulations 2007 extended protection to the provisions of goods, facilities and services (which is outside of the scope of this web site).

What constitutes direct discrimination?

Direct discrimination occurs where a person is treated less favourably because of their sexual orientation or perceived sexual orientation. It should be noted that the “perceived” element is an important one because, unlike gender, disability and, to a lesser extent, race, a person’s sexual orientation is less likely to be apparent.

Thus, it is unlawful for an employer to use sexual orientation as a reason for:

  • deciding not to employ someone,
  • dismissing them,
  • refusing to provide training to them,
  • failing to promote them,
  • paying them less or providing fewer benefits, or
  • subjecting them adverse terms and conditions.

Thus, if an employer decides not to employ someone because they believe them to be LGB and think that this might dissuade clients or customers from using their services, then this would be discriminatory. Similarly, if an employer decided not to promote a gay man because he believed that other workers would not respect him as a manager, then that too would be discriminatory.

Furthermore, if an employer gives benefits to opposite sex unmarried partners of its employees (e.g. the employees opposite sex partner is able to drive the company car), refusing the same benefits to same-sex partners could be discrimination as could refusing the benefit to a civil partner if the benefits are extended to the spouse of a married person.

There are a number of exceptions to the legislation known as ‘Genuine occupational requirements’ which will be looked at later.

What constitutes indirect discrimination?

Indirect discrimination occurs where an employer applies a method of selection or imposes a procedure or requirement upon a number of people the effect of which was to put at a disadvantage those of a particular sexual orientation and the practice of doing so cannot be justified.

Thus, for example, if an employer makes a requirement that all employees have to be prepared to work in a country where homosexuality is illegal and there is no justifiable business reason for that requirement then discrimination would be likely to have occurred. If, however, the employers principal business was undertaken in that country then the discrimination may be able to be held to be justified if it was necessary that a person doing that particular role needed to visit the country.

In all cases of indirect discrimination, it is up to the employer to show that the criteria was valid.

What constitutes harassment?

Harassment occurs where a person is subjected to behaviour or comments that are offensive, frightening, unpleasant or create which create an oppressive or unpleasant atmosphere within the work place. The behaviour does not have to intentionally harass the person in question – it is enough that the behaviour was objectively capable of amounting to harassment and had the effect of harassing the person subject to it.

Harassment does not have to be either a major single act nor take place over a long period of time. One incident of sufficient severity can amount to harassment as can a sequence of minor incidents, no one of which would amount to harassment in its own right.

Thus a culture in which homophobic jokes are regularly told, or where fun is made of the way in which a gay person speaks or acts, would amount to discrimination just as much as where a LGB person was subjected to acts of physical abuse, threats or insults.

The harassment does not even need to be about the person themselves. Thus, for example, if a person is subject to harassment because they have a friend or relative who is LGB then that would be sufficient for the discrimination to have occurred.

Employers need to be aware that they may be held accountable for the actions of their employees – as well as the employees who perpetrated the harassment themselves being individually responsible. An employer may be ordered to pay compensation unless they can show that they had used their best efforts to prevent the harassment from occurring and that despite this the harassment had still occurred. Employers should also bear in mind that they can also be liable for harassment that occurs outside of the work place if it was in some way associated with the workplace, for example at a work-related social gathering or during drinks after work at a local pub.

Employers should therefore take steps to ensure that such harassment does not occur within the work force and should train staff to be aware of what kinds of activities and words could constitute harassment. There should also be in place a system whereby those who are experiencing harassment can bring it to the attention of their employer. Be mindful when looking into incidents of harassment that it is often a very subjective thing and can be the culmination of a series of incidents of which the current incident is only the final straw.

What constitutes victimisation?

Victimisation occurs when a person is treated less favourably because they have:

  • made a complaint or intend to make a complaint about discrimination or harassment,
  • assisted another person in making a complaint about discrimination or harassment, or
  • given evidence or intend to give evidence relating to a complaint about discrimination or harassment.

The kind of behaviour which can count as victimisation takes a number of forms and can come either from colleagues or the employer.

Thus if colleagues refused to sit at the same table in the canteen as them, or refuse to speak to them, or even subject them to physical or other abuse because of it, then this would amount to both victimisation and harassment. If the employer labeled them a troublemaker, passed them over for promotion or failed to give them responsibilities they would normally have given to someone in a similar position then this can also be victimisation.

If as an employer you are aware that colleagues or managers are doing this then you need to take immediate steps to ensure that it is stopped otherwise you could be held accountable for the victimisation despite it having been carried out without your authority.

What should employers do?

If an employer wishes to avoid potential claims being made against them in respect of sexual orientation discrimination then there are a number of steps which they can take, including:

  • ensuring that the policies applied to recruitment, promotion, training and the giving of benefits do not discriminate against anyone on the grounds of their sexual orientation. This applies equally to policies affecting heterosexual employees as it does to LGB employees,
  • ensuring that employees are not treated differently because of their sexual orientation or forced to hide their orientation because they know, or suspect, that were they to reveal it they would be treated differently,
  • putting in place support mechanisms so that employees can raise issues of sexual orientation in a confidential manner with the employer and make complaints or rise grievances about working practices or problems with colleagues,
  • training staff to be tolerant of other people’s sexual orientation and ensuring that they are trained not to discriminate – either intentionally or unintentionally,
  • monitoring the workforce and the attitude of the workforce so as to ensure that harassment is not occurring or that homophobic views are being expressed,
  • ensuring that employees who assert their rights under these regulations, or assist others to assert their rights, or give evidence in cases involving a breach of the rights under these regulations, are not only not treated less favourably but are given support and assistance inside and out of the workplace.

Exceptions and exemptions

There are a number of circumstances where it is permissible for a person to be treated differently on account of their sexual orientation. These are, however, limited in scope and it would be up to an employer to demonstrate that the less favourable treatment was both necessary and justified.

Genuine occupational requirement – if an employer can demonstrate that there is a genuine reason why someone of a particular sexual orientation either should or should not be employed, promoted or transferred then the discrimination may be capable of being justified. To do this the employer will need to show not only that being of a particular sexual orientation is a primary factor for the role, but also that it is a proportionate response to make the requirement. An example might be where it is essential (as opposed to desirable) that a person work in a country where homosexuality is illegal.

Working for an organised religion – this is a specific occupational requirement and applies where the person would be working for an organised religion whose doctrines are opposed to anyone who is not heterosexual. This would be very narrowly applied by the courts and would only affect those who wished to be a member of the clergy of that religion or working closely with the religion. Thus, whilst a clergyman might come within the definition, it would be unlikely that a gardener would. It should also be noted that having a “religious ethos” but not being an actual organised religion will not normally give an employer a right to discriminate.

Benefits dependent upon marital status – it would be permissible for an employee to offer benefits only to married couples or those in a civil partnership whilst refusing them to unmarried opposite sex couples and unmarried same sex couples. However, if the benefit were offered to unmarried opposite sex couples it would have to be offered to unmarried same sex couples and vice versa.

Positive action – not to be confused with positive discrimination, an employer might be able to make training available to those of a particular sexual orientation in order to address a perceived imbalance in the workforce provided that when issues of recruitment and promotion arose the best candidate was appointed irrespective of sexual orientation.

Sexual orientation and religion in the workplace

As an employer you may be confronted with the problem of a worker who has strong religious views about sexual orientation and one who is LGB and has strong views about what they see as religious bigotry. How can you reconcile this dilemma if both employees work in close proximity?
Just because one employee holds strong religious views regarding sexual orientation does not give them the right to harass or bully another employee - everyone has the right to be treated with respect, no matter what their sexual orientation. Therefore the discriminatory acts of the religious person would be equally as discriminatory as those of a person who did not hold religious views but was simply homophobic and steps should be taken by the employer to ensure that they do not occur.

If, however, an employer is faced with an employee who, because of religious beliefs, refuses to carry out duties related to gay people, or refuses to work in the same room or department as a gay person, then the employer will need to undertake a fine balancing act. If the religious person’s beliefs can be easily accommodated by, for example, re-allocating duties among a team or by moving them to another part of the workplace then this should be done. However, if the person claims that by being moved they are being discriminated against on religious grounds, then the employer may have more of a problem. In certain circumstances there may be no solution – especially if both parties are taking a stand on principles.

What to do next

If an employee believes that they have been discriminated against because of their sexual orientation then they may be able to make a claim in the Employment Tribunal. However, the employee should talk to their employer first to try to sort out the matter informally.

The level of proof is known as the “balance of probabilities” level of proof – that is to say a Tribunal would not need to be absolutely certain that discrimination had occurred, simply that it is more likely than not that the way a person was treated was on the grounds of their sexual orientation. Having established that there are facts from which a Tribunal could decide that there had been discrimination, the burden then moves over to the employer who must then show that notwithstanding the evidence, no discrimination occurred.

Other than in exceptional circumstances, before an employee can take a matter to the Tribunal they must first raise the discrimination in writing with their employer and follow the employers grievance. Employees are allowed to serve a questionnaire on the employer. The Employment Equality (Sexual Orinetation) Regulations 2003 provides a set form of questionnaire which an employee can use to ask questions of someone whom they believe has discriminated against them. This is a similar to provision to that in relation to the sex, race and disability anti-discrimination rules. A copy of the questionnaire form can be obtained from the web site of the Department for Business, Enterprise and Regulatory Reform.

Normally the questionnaire must be served within 3 months of the alleged discrimination and the employer must reply within 8 weeks. Whilst there is no statutory obligation on an employer to answer the questionnaire an employment tribunal will be entitled to draw whatever inferences it considers appropriate from a failure to answer within the time allowed or from evasive or equivocal replies. The questionnaire will not, however, replace the need to raise a formal grievance.

A complaint is made on form ET1 which you must send to the Regional Office of Employment Tribunals. You can obtain a form ET1 from a number of places including Jobcentres, the local employment tribunal or online at the Employment Tribunal web site. The complaint must be made within three months, less one day, from the date upon which the discrimination first happened or, if you have gone through the grievance procedure, six months less one day. Note, however, that an employer must be given at least one month to sort out your grievance before you can proceed to the Employment Tribunal so it is vital that you complain to your employer and start the grievance process as soon as possible.

For more information on taking matters to the Employment Tribunal see elsewhere on this web site or contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.