Law guide: Employment

See how we helped Michael

"Fantastic! The legal document I used was so comprehensive and easy to complete. It is very reassuring to know my business now has this level of protection"

Michael S, London

Sexual orientation discrimination

Sexual orientation discrimination

Contents

Introduction

Legislation offers protection for workers from discrimination and harassment at work on grounds of sexual orientation.

The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 and Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (as amended) outlaw discrimination and harassment on sexual orientation in large and small workplaces, both in the private and public sectors. They cover all aspects of the employment relationship, including recruitment, pay, working conditions, training, promotion, dismissal and references.

What is sexual orientation?

The above mentioned regulations define sexual orientation as a sexual orientation towards persons of:

  • The same sex (homosexual)
  • The opposite sex (heterosexual)
  • The same and the opposite sex (bisexual)

This means that the regulations protect lesbians, gay men, bisexuals and heterosexuals.

Types of sexual orientation discrimination

Direct discrimination

This is where a worker is treated less favourably because of their sexual orientation, when compared with another worker (known as a 'comparator') of a different sexual orientation, but who otherwise shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Industrial Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

  • Your perception of their sexual orientation, regardless of whether or not the perception is correct. For example, if you refuse to promote an employee because you believe him to be homosexual, but instead promote his colleague, whose circumstances are similar, except that you do not have the same perception about their sexual orientation.
  • The sexual orientation of another person (also known as discrimination by association). For example, if you treat an employee less favourably because they have gay friends or have refused to comply with instructions that would require them to discriminate against someone because of their sexual orientation.

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

You cannot defend against a claim of direct sexual orientation discrimination 'justifying' it (arguing that your actions were a proportionate means of achieving a legitimate aim). There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required in order to comply with another law or a genuine occupational requirement applies to the job.

Indirect discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all the workers in the workplace that puts members a group with a particular sexual orientation at a particular disadvantage when compared with other workers and a worker within that group actually suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

For example, if you introduce a policy stating only employees who are biological parents may go on a child-care training course, this policy may result in homosexual employees suffering a disadvantage when compared to heterosexual employees, as homosexuals are less likely to have given birth to or biologically fathered children, but may have adopted them. In this case, a homosexual employee would have been eligible to go on the training course had it not been for the policy.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if it can be shown that its application is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker because of that worker's sexual orientation. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment, if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is treated less favourably than another worker because:

  • They have asserted their right under the sexual orientation discrimination regulations not to be discriminated against
  • They have given evidence or information in a complaint of sexual orientation discrimination made by another worker
  • They have taken any other action under legislation protecting them from sexual orientation discrimination
  • They have alleged that you or any other worker has contravened legislation affecting sexual orientation discrimination
  • You know that they intended to do, or you suspect that they have done or intend to do, any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned actions.

Exceptions

There are a few exceptional circumstances where discrimination on the basis of sexual orientation will not be regarded as unlawful. Some of these include:

  • Organised religion – an employer may require an applicant to be of a specific sexual orientation for certain reasons when the employment relates to an organised religion.
  • Genuine occupational requirement – an employer may require an applicant to be of a particular sexual orientation where that is a requirement to be able to do the job properly.

Positive action

In some circumstances, you may encourage or offer support specifically to people of a particular sexual orientation. This is called 'positive action' and is, in certain circumstances, allowed under sexual orientation discrimination laws.

Positive action is not unlawful where you provide the following to persons of a particular sexual orientation, in order to prevent or compensate for disadvantages linked to that sexual orientation, which such persons might suffer when doing the work:

  • Access to facilities for training which would help equip them for the particular work;
  • Encouragement to take advantage of opportunities for doing the particular work.

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances. Positive discrimination is unlawful.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

A complaint must be presented within three months from the date of the act complained of, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

More information on the legislation can be found on the Department of Enterprise, Trade and Investment Statistics in Northern Ireland's website.

You can get more information from the Labour Relations Agency (LRA), which offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline on 028 9032 1442, from 09:00 to 17:00, Monday to Friday.