The law relating to sexual orientation discrimination is governed by the Equality Act 2010. Under the Act, sexual orientation means a sexual orientation towards persons of the same sex, persons of the opposite sex or persons of either sex.
Sexual orientation is a “protected characteristic” and the Act prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, victimisation and harassment.
Direct discrimination is where, because of the protected characteristic of sexual orientation, a person treats another person less favourably than that person treats or would treat other persons.
Indirect discrimination is where person A applies to person B, to B’s disadvantage, a provision, criterion or practice (PCP) that A applies or would apply equally to persons not of the same sexual orientation as B, but which puts, or would put, persons of the same sexual orientation as B at a particular disadvantage when compared to other persons and which A cannot show to be a proportionate means of achieving a legitimate aim.
An employer may be able to justify the discriminatory result of a provision, criterion or practice by establishing that it is justifiable because it is a “proportionate means of achieving a legitimate aim” for example, an organisation advising on and promoting gay rights may be able to show that it is important to its credibility that its chief executive, who will be the public face of the organisation, should be gay. The sexual orientation of the holder of that post may therefore be a genuine occupational requirement
Harassment is where person A engages in unwanted conduct related to the protected characteristic of sexual orientation that has the purpose or effect of violating person B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her. Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act.
Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a “protected act”.
Some examples may help to unravel what can be quite a complex subject.
Employer A rejects all non gay job applicants, preferring to employ gay bar staff to reflect the club’s gay focus . This is direct discrimination and cannot be justified.
Employer B asks staff in a former gay bar to, where possible, seat families on tables visible to the public outside to reflect the business intention to broaden its appeal. This may have the impact of indirectly disadvantaging gay people (indirectly because the owner is not excluding gay people from the bar) but could be ruled to be a PCP reflecting the commercial goals of the business and therefore justifying any potential discrimination.
Typical employment law pitfalls
Many obvious examples of discrimination on grounds of sexual orientation, normally against gay people, exist in case law. Apart from avoiding the obvious pitfalls of not recruiting gay people or humiliating, or allowing them to be humiliated when in work, employers should also be careful of the less obvious. For example if an employer knows of a customer engaging in unacceptable homophobic behaviour towards an employee he (the employer) could be held to be ‘vicariously liable’ for the actions of the customer if he chose to allow the behaviour to continue. Similarly an employer will be vicariously liable for the homophobic actions of his employees even when he didn’t know the actions were happening. Hence the importance of having and communicating policies and procedures which help employees understand what is acceptable and what is not and how to raise complaints.
One person’s banter is another’s insult and again employers should keep close tabs on banter in the workplace, taking action if it appears to be or could reasonably believed to be stepping over the mark.
Help & support
If a sexual orientation related dispute is apparent or a complaint is made or you think might be made, are please contact us straight away to ensure the myhrdept.co.uk tribunal guarantee scheme (ETGS) is not invalidated. Losses arising from employment tribunal awards made on the basis of a finding of unlawful discrimination are not covered by the ETGS, but the costs of representation, subject to conditions, will still be covered.
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