Employment law – Sexual orientation
The Equality Act 2010 (‘the Act’) makes it unlawful to discriminate in employment on the grounds of sexual orientation. There are limited exceptions where discrimination is allowed but these are uncommon.
How is ‘sexual orientation’ defined under the Act?
For the purposes of the Act, ‘sexual orientation’ covers those who are gay, heterosexual, bisexual and lesbian.
What is sexual orientation discrimination?
Sexual orientation discrimination is where you are treated unequally because of your sexual orientation, your perceived orientation or the orientation of someone with whom you associate. The Act has deemed that sexual orientation is a ‘protected characteristic’ and, accordingly, discrimination for this reason is unlawful.
Sexual orientation discrimination can arise in any of four ways:
- Direct discrimination
- Indirect discrimination
Such discrimination can apply at interview stage, in the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed or subjected to any other detriment. Therefore, the law is designed to protect employees and workers of any orientation during all aspects of employment. Moreover, you do not need to be employed for a particular period of time in order to bring a claim.
Who is covered by the Act?
The Act applies to all employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.
This is perhaps the most common type and involves the less favourable treatment of others on grounds of sexual orientation. Direct discrimination also covers ‘associative discrimination’ where a person is discriminated against for associating with someone with a certain sexual orientation, as well as ‘discrimination by perception’ which is the unfair treatment of someone who is thought to be of a certain sexual orientation.
You would need to look at how an employer treats one employee of a particular orientation as compared to another. An example of direct discrimination might be where a lesbian is refused a promotion. Other examples might include the harassment of someone because he has a gay son or refusing to employee a woman because she is wrongly believed to be bisexual.
The defence of justification is not available for direct discrimination.
This is the application of a rule or practice that, on the face of it, applies equally to persons who are not of the same sexual orientation but which particularly disadvantages those of a certain sexual orientation.
An example of indirect discrimination might be where an individual is a train driver and the train company offers free or discounted train travel to the employee and spouse, but the policy was written a long time ago and only recognises marriage between a man and a woman. The policy whilst a blanket policy applying to all individuals regardless of sexual orientation disadvantages an individual from the LGBT+ community and therefore if the company failed to extend the policy to them and their spouse or civil partner, this could give rise to a discrimination claim.
Indirect discrimination can be objectively justified; the onus is on the employer to prove that it the discrimination is a proportionate means of achieving a legitimate aim.
Harassment is defined as subjecting someone to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter if the harassment is intentional or unintentional. Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect.
Therefore, the definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.
Harassment doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Examples of this might include the telling and tolerating of homophobic jokes around the office and the use of derogatory homophobic terms.
Additionally, the Equality Act has deemed that the employer is potentially liable for the harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.
This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of sexual orientation under the Act. There is no longer a need to compare your treatment to an employee who has not done one of the above.
Who is liable under the Act?
Liability for sexual orientation discrimination usually lies with the employer and/or any other employee who is found to have discriminated.
Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability. As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.
Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the employee as well as the employer.
Employers have a defence to a complaint of discrimination based on vicarious liability and third party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, in the case of vicarious liability, the claim can continue against the individual employee.
Exceptions under the Act
The Act applies only to establishments in Great Britain.
Genuine Occupational Qualification (GOQ) or Genuine Occupational Requirements (GOR)
The Act provides for specific situations in which discrimination in the employment field is allowed. Under this an employer must simply show that the requirement to discriminate is a ‘proportionate means of achieving a legitimate aim’. Examples of this might be where the customers are predominantly of one sexual orientation or the job requires an understanding of a particular sexual orientation, for example a gay man’s sexual health worker.
Positive action is a voluntary measure which enables employers to provide support or encouragement to persons within a particular group if, during the last 12 months, that group has been disproportionately represented in that area of work. Employers could encourage this group to apply for jobs and even provide special training.
Provision is made in the Act for a questionnaire to be used by the applicant. A form may be served on the employer asking certain standard questions, such as how many people of a certain sexual orientation are employed and in respect of pay and promotional matters.
The replies are admissible in evidence and a refusal to reply without reasonable excuse, or evasive replies, permit the tribunal to draw adverse conclusions. An equivocal reply might also lead a tribunal to infer that there has been racial discrimination.
It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’.
This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that they have it must decide in favour of the employee.
Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.
It is unusual to find direct evidence of racial discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully.
Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. Where, for example, an employee complains of failure to promote on racial grounds the evidence may point to the possibility of racial discrimination. In those circumstances the tribunal may look to the employer for an explanation that proves there was no discrimination.
If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory it is open to the tribunal to infer that the discrimination was on racial grounds.
Raising a grievance
If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.
If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.
An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of race discrimination.
- A declaration which is an order declaring what the rights of the parties are
- A recommendation that the employer should take certain steps to remove or reduce the discrimination
Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for discrimination. Compensation normally includes an award for injury to feelings and an award to take into account any loss suffered, for example loss of wages or pension. The awards for injury to feelings can vary, however many thousands of pounds is not uncommon. The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, and from 6th April 2019, they are:
TOP BAND FOR THE MOST SERIOUS CASES: £26,300 – £44,000 (although it can exceed this in exceptional cases);
MIDDLE BAND: £8,800 – £26,300
LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £900 – £8,800
The Act imposes strict time limits throughout the procedure for bringing a case for disability discrimination. Good cases can be lost before they start through hesitation or delay.
If you suspect that you have been discriminated against by your employer, you should take advice as soon as possible.
The time limit for making a claim for disability discrimination to the employment tribunal is three months less one day from the last actof discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.
A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three month period runs from the end of the continuing act. Please click here for more information.
Tribunals do have discretion to allow late claims to proceed, but there must be a good reason why a claim was not made in time.
You should obtain professional advice as soon as possible if you think you have a claim.