Sexual orientation discrimination – a guide for employees

Table of contents

What is sexual orientation discrimination in the workplace

Sexual orientation discrimination occurs if you are treated detrimentally or unfairly in the workplace because of your sexual orientation, or treated unfairly because of the sexual orientation of someone else that you are associated with. This treatment can be because of any sexual orientation, whether this is because you are homosexual, bisexual, heterosexual or asexual. You are protected against sexual orientation in the workplace under the Equality Act 2010.

Under the Equality Act 2010 you must not be discriminated against because of your (or an associated person’s) protected characteristic. “Sexual orientation” is a protected characteristic under s.X of the Equality Act 2010 and includes, as above, homosexuality, bisexuality, heterosexuality or asexuality. Sexual orientation discrimination can take the following forms:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimization
  • Examples of sexual orientation discrimination

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Examples of sexual orientation discrimination

  • Whilst being interviewed, a job applicant says that she has a same sex partner. Although she has all the skills and competences required of the job holder, the organisation decides not to offer her the job because she is lesbian. This is direct discrimination
  • A worker has a son who is gay. People in the workplace often tell jokes about gay people and tease the worker about his son’s sexual orientation. This may be harassment on grounds of sexual orientation, despite it not being the victim’s own sexuality that is the subject of the teasing
  • Martin manages a doctor’s surgery. One of his staff, Jim, is gay. Jim mentions to Martin that he is feeling unhappy after a patient made a homophobic remark to him. Martin is concerned and monitors the situation. Within a few days a different patient makes a homophobic remark to Jim. Martin reacts by having a word with the patient, pointing out that this behaviour is unacceptable. He puts up posters in the surgery office informing patients that harassment of staff will not be tolerated. Martin keeps Jim in the picture with the actions he is taking and believes that he is taking reasonable steps to protect Jim from harassment

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Sexual orientation discrimination cases in the newspapers

  •  Stena Line docker wins homophobia unfair dismissal case – A Belfast dock worker sacked after reacting to homophobic abuse at work has been awarded £45,000 compensation. An industrial tribunal found Martin Sheil, 51, had been unfairly dismissed by Stena Line Irish Sea Ferries (BBC)
  • Former Sunday Express critic claims he was sacked over discovery of ‘gay’ naked online photos – A former theatre critic at the Sunday Express who claimed that he was sacked as the paper said he brought it into “disrepute” when naked photos of him two decades old were discovered online, will go to a tribunal next week (Pink News)
  • Former Cineworld deputy manager wins sexual orientation tribunal – A former manager says he has got “justice” after being unfairly sacked by cinema giant, Cineworld. Craig Sambrook took the company to an employment tribunal after being sacked from Nottingham’s Cineworld multiplex (Nottingham Post)
  • Lesbian couple who suffered ‘cruel and malicious’ bullying win discrimination case – A lesbian former chief executive and her partner have won a sexual orientation discrimination case against a company they both previously worked for (Pink News)

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The definition of sexual orientation under the Equality Act 2010

Sexual orientation is a protected characteristic under s.12 of the Equality Act 2010 and means a person’s sexual orientation towards:

  • persons of the same sex (that is, the person is a gay man or a lesbian);
  • persons of the opposite sex (that is, the person is heterosexual); or
  • persons of either sex (that is, the person is bisexual)

Sexual orientation discrimination includes discrimination because someone is of a particular sexual orientation, and it also covers discrimination connected with manifestations of that sexual orientation. These may include someone’s appearance, the places they visit or the people they associate with.

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Direct sexual orientation discrimination

Direct sexual orientation discrimination occurs if you are treated less favourably because of your sexual orientation discrimination (s.13 Equality Act 2010).

Normally, but not always, direct discrimination involves the intentional treatment of someone less favourably because of their sexual orientation. The easiest way to approach direct discrimination is in terms of comparative treatment – have you been treated less favourably than an actual or hypothetical colleague because of your sexual orientation?

As well as being treated less favourably because of a protected characteristic that you possess, you are also protected from less favourable treatment if any of the following occur:

  • You are treated less favourably than others because of a protected characteristic that someone whom you are associated with possesses e.g. a friend or a relative (known as “discrimination by association”)
  • You are treated less favourably because of the protected characteristic of a person who you do not know (e.g. you are discriminated against because you refuse to discriminate against a customer because of their sexual orientation)
  • You are treated less favourably because your employer wrongly perceives that you have a protected characteristic (e.g. you are discriminated against because someone at work wrongly perceives that you are bisexual)

Examples of direct sexual orientation discrimination

  • Whilst being interviewed, a job applicant says that she has a same sex partner. Although she has all the skills and competences required of the job holder, the organisation decides not to offer her the job because she is lesbian. This is direct discrimination
  • A manager is approached by someone from another organisation. He says that Ms ‘A’ has applied for a job and asks for a reference. The manager says that he cannot recommend the worker as she was not accepted by other staff because she was bisexual. This is direct discrimination because of sexual orientation
  • A sports club requires two individuals to manage the bar and other facilities. They advertise for a husband and wife team. This is likely to be direct discrimination on grounds of sexual orientation because the sports club is treating civil partners less favourably than spouses

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Indirect sexual orientation discrimination

Indirect discrimination occurs when your employer or prospective employer puts in place a rule, policy or practice which people of a certain sexual orientation are less likely to be able to meet than other people, and this places them at a disadvantage.

The definition of indirect discrimination is contained at s.19 Equality Act 2010. Under s.19:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristics of B’s if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic; (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; (c) it puts, or would put, B at that disadvantage; and (d) A cannot show it to be a proportionate means of achieving a legitimate aims.19 Equality Act 2010

Examples of indirect sexual orientation discrimination

  • An employer advertises that only employees who are married or in a civil partnership are allowed to certain receive privileges or benefits. This is likely to be indirect discrimination as homosexual couples are statistically less likely to get married or enter into a civil partnership
  • Your employer implements a policy that staff with children are allowed the first choice of holiday dates. This policy may put homosexual couples at a disadvantage as they are statistically less likely to have children and would therefore be disproportionately disadvantaged by this policy.

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Harassment because of your sexual orientation

Harassment at work occurs under s.26 of the Equality Act 2010 if you are subjected to conduct relating to your sexual orientation which is unwanted and has the purpose or effect of violating your dignity or creating an intimidating, hostile, disregarding, humiliating or offensive environment for you.

“Conduct” can include any form of act or omission e.g. a colleague making prejudiced comments in your presence or a co-worker putting up a nude calendar in the workplace.

The harassment need not be related to your sexual orientation – you may also claim harassment in the following situations:

  • Where remarks relating to your sexual orientation are made but not directed at you: for example, you are homosexual and an offensive joke about homosexuals is made in the workplace but not directed at you.
  • Where remarks not relating to sexual orientation (but not your sexual orientation) are made about other people: for example, you are homosexual and an offensive joke about heterosexuals is made in the workplace. No heterosexuals are present but you find the joke offensive.
  • Where remarks are made about a person you are associated with: for example, you have a bisexual sister and your colleagues repeatedly make offensive remarks about her.
  • Where you are falsely perceived to be of a particular sexual orientation: for example, you are wrongly perceived to be homosexual and a number of offensive jokes are made about homosexuals
  • Where it is known that you are not of a particular sexual orientation but your colleagues make offensive remarks anyway: for example, you are heterosexual but your colleagues, knowing this, subject you to “banter” about you being asexual

Examples of sexual orientation-related harassment

  • A male worker who has a same sex partner is continually referred to by female nicknames which he finds humiliating and distressing. This is harassment.
  • You are bisexual and offensive jokes relating to bisexuals are made in your presence, although not directed about you. This could amount to harassment related to sexual orientation
  • A worker has a son who is gay. People in the workplace often tell jokes about gay people and tease the worker about his son’s sexual orientation. This may be harassment on grounds of sexual orientation, despite it not being the victim’s own sexuality that is the subject of the teasing
  • Jenny is a lesbian and is claiming harassment against her line manager after he frequently teased and humiliated her about her sexual orientation. Caroline shares an office with Jenny and she too is claiming harassment, even though she is not a lesbian, as the manager’s behaviour has also created an offensive environment for her

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Victimization

Under s.27 of the Equality Act 2010, it is unlawful to victimize you because you have done a “protected act”. Basically, this means that you must not be punished because you have complained about discrimination in one way or another or if you have helped someone who has been the victim of discrimination. The detriment which you may be subjected to can and does vary: you may be bullied at work, labelled a trouble-maker, denied promotion, training or annual leave, or even dismissed from your job.

You are protected against any detriment at work only if you do one of the following things (“protected acts”):

  • Make a complaint or claim of discrimination under the Equality Act 2010
  • Give evidence or information to help someone else who has made a complaint or claim under the Equality Act
  • Do any other thing which is related to the Equality Act
  • Say that someone has done something unlawful under the Act

Examples of victimization

  • The owner of a shop orders his staff not to serve anyone who they think is homosexual. The shop staff would have a claim against the owner if any of them experienced a detriment because they didn’t follow the instruction. A potential customer would also have a claim against the owner under the services provisions of the Act if they discovered the instruction had been given and was put off shopping at the store
  • A worker threatens to make a claim for sexual orientation-related harassment in the Employment Tribunal and is then threatened by his employer and pressurised to drop the claim by his employer
  • A colleague of yours makes a claim for sexual orientation discrimination in the workplace and asks you to give evidence at the Employment Tribunal. You agree to do so and you are then threatened by your employer and are pressurised to drop the claim.

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Action you can take if you think that you’re being discriminated against

If you think that you are being discriminated against or harassed because of your or another person’s sexual orientation then you should take action as soon as possible. Below are some examples of what you can do:

  • Inform your line manager that you believe that you are being discriminated against. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is discriminating against you then make a complaint so someone else in a position of authority in your organisation.
  • Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
  • Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
  • Collect evidence of the incidents that you think are discriminatory. An important thing to do is to keep a diary of all of the incidents of discrimination that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

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Making an Employment Tribunal claim for sexual orientation discrimination

If you want to make an Employment Tribunal claim for sexual orientation discrimination then you must do the following:

  • Make your claim within three months of the last date of discrimination (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
  • Since May 2015 you must also apply to ACAS for a certificate of early conciliation – if you fail to do so then you will not be able to bring your claim in the Employment Tribunal (unless very limited exceptions apply)
  • Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for sexual orientation discrimination – you have the right to do this from “day one”.

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Employment Tribunal cases involving claims of sexual orientation discrimination

  • Bivonas LLP and others v Bennett (Employment Appeal Tribunal case)– handwritten archived note referring to colleague as “batty boy” was discriminatory (Employment Appeal Tribunal judgment here, or read our analysis of the case)
  • Callahan v Benchmark Cleaning Services Ltd (Employment Tribunal case)– “hello darling” greeting and limp wrist gestures constituted discrimination (read our analysis of the case)
  • Austin v Samuel Grant (North East) Ltd (Employment Tribunal case) – employee discriminated against when called “gay” because he did not like football (read our analysis of the case)
  • Aramark Ltd v Yahiaoui (Employment Appeal Tribunal case) – failure to investigate allegations of homophobia constituted sexual orientation discrimination (Employment Appeal Tribunal judgment here)

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How Redmans can help you if you think you’ve been discriminated against

If you think that you’re being discriminated against (or have been discriminated agianst) by your employer because of your sexual orientation our expert employment lawyers can advise you on your case and to help you to get the outcome you deserve.

Call 020 3397 3603 today to talk to one of our expert employment solicitors.

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Case studies of how Redmans have helped clients who have been discriminated against because of their sexual orientation

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Further information on sexual orientation discrimination in the workplace

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