Sexual orientation discrimination in the workplace

Sexual orientation discrimination in the workplace

One in five lesbian, gay or bisexual employees have experienced verbal bullying from colleagues, customers or service users because of their sexual orientation in the last five years (identified by Stonewall charity). There were 248 claims brought in the Employment Tribunal for sexual orientation discrimination during 2016 to 2018 (Source: HMCTS Tribunals Quarterly).

What is sexual orientation discrimination?

Sexual orientation is one of nine protected characteristics set out in the Equality Act 2010 (the “Act”). It is unlawful to discriminate, victimise or harass someone because of their sexual orientation. The Act protects job applicants and those “in employment” under a contract of employment, apprenticeship or any contract personally to do work.

Sexual orientation is simply an orientation towards persons of the same or opposite sex, or both sexes. The Act therefore provides protection for gay men, lesbians, bisexuals and heterosexuals.

There are four types of discrimination:

1. Direct discrimination – treating a job applicant or employee less favourably than others because of sexual orientation.
2. Indirect discrimination – where the employer has a practice or policy which disadvantages job applicants or employees of a particular sexual orientation without objective justification.
3. Harassment – subjecting a job applicant or employee to harassment relating to sexual orientation.
4. Victimisation: where a job applicant or employee is victimised because they have made or intend to make a sexual orientation discrimination complaint under the Act.

Advice: Discrimination in the workplace

If you feel you are being discriminated against because of your sexual orientation, you should try to resolve it by raising it with your employer, informally or by way of a formal grievance.  You should ask for a copy of your employer’s grievance procedure.

Steps to be taken by employers

Employers should be mindful to ensure that they comply with the requirements under the Act. An effective equal opportunities policy should discourage discriminatory attitudes and behaviours, and make job applicants and employees feel confident about equality of opportunity

An equal opportunities policy can help to set minimum standards of behaviour and reduce the risk of legal action. Provided it is implemented with proper training and publicity, and appropriate action is taken in the event of breach, it can also help an employer establish a “reasonable steps” defence under the Act. This means the employer can avoid liability for discrimination or harassment committed by an employee if the employer has taken “all reasonable steps” to prevent the unlawful act (or acts of that kind). Implementation will include publicising the policy to all employees, delivering appropriate training to managers, and ensuring that breaches are dealt with consistently and effectively.

Legal advice

Humphries Kirk has a team of experts who can provide assistance to you if you are subjected to sexual orientation discrimination in the workplace. If you are an employer we can advise you how to comply with the requirements under the Act. For more information please contact Audrey Spencer, Head of Employment on 01202 725400 or email a.spencer@hklaw.eu