AA Legal Documents
Law guide

Sexual orientation discrimination

Contents

It's against the law for an employer to discriminate against you because of your actual or supposed sexual orientation, or your association with people of a particular sexual orientation.

What is sexual orientation?

The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (as amended), define sexual orientation as a sexual orientation towards persons of:

  • The same sex (homosexual)
  • The opposite sex (heterosexual)
  • The same and of the opposite sex (bisexual)
This means that the regulations protect lesbians, gay men, bisexuals and heterosexuals in employment and vocational training.

Types of sexual orientation discrimination

Direct sexual orientation discrimination

This happens when you are treated less favourably than another worker on the grounds of your sexual orientation, when compared with another worker of a different sexual orientation, but who otherwise shares the same or similar (but not materially different), circumstances as you (known as a 'comparator').

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

The law also extends to protecting you from direct discrimination if your employer treats you less favourably based on:

  • Their perception of your sexual orientation, regardless of whether or not the perception is correct. For example, you are refused a promotion because your employer perceives you to be homosexual. Your colleague, however, is promoted, even though their circumstances are similar to yours, except that your employer doesn't have the same perception about their sexual orientation. This may be a case of direct sexual orientation discrimination.
  • The sexual orientation of another person (also known as discrimination by association). For example, if you are being treated less favourably because you refused to comply with instructions that would require you to discriminate against someone because of their sexual orientation, then it may amount to direct discrimination.
Your employer could be liable for a direct discrimination claim even if there was no intention to discriminate against you.

Your employer can't defend against a claim of direct sexual orientation discrimination by 'justifying' it (arguing that their 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.

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

Indirect sexual orientation discrimination

This is where formal or informal working practices, provisions or criteria that your employer applies equally to all workers, places workers with your sexual orientation at a particular disadvantage when compared with workers of a different sexual orientation .

For example, an employer introduces a policy stating only employees who are biological parents may go on a child-care training course. That policy may result in homosexual employees suffering a disadvantage when compared to heterosexual employees, as homosexual employees are less likely to have given birth to or biologically fathered children, but may have adopted them. In this case, if you are homosexual and would have been eligible to go on the training course had it not been for that policy, you might have a claim for unlawful indirect sexual orientation discrimination.

Your employer could be held liable regardless of whether or not they intended to discriminate against you.

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

Harassment

Harassment on the grounds of sexual orientation is where another employee, or your employer, subjects you to unwanted conduct that has the purpose or effect of violating your dignity, or creates an intimidating, hostile, humiliating, degrading or offensive environment.

Furthermore the unwanted conduct will be harassment even where it was not intended to be harassing. If it is reasonable to regard the unwanted conduct as having a harassing effect, it will be unlawful.

Note that you will not be protected by the regulations if you are over sensitive and unreasonably take offence to an innocent comment.

Employers can't defend claims of harassment on the grounds that the actions were reasonable or warranted. Employers will be liable for any harassment suffered in the course of employment, regardless of whether they knew about it or not, if they fail to take reasonable steps to prevent it. 'In the course of employment' in this case means 'done to you while at work' or 'done to you during work time'. Employers can't defend a claim of harassment by showing that they did not authorise it.

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

Victimisation

Victimisation for purposes of the sexual orientation discrimination regulations happens when you are treated less favourably than another employee because:

  • You have asserted your rights under the sexual orientation discrimination regulations not to be discriminated against
  • You have given evidence or information in a complaint under the sexual orientation discrimination regulations made by another worker
  • You have taken any other action under the sexual orientation discrimination regulations
  • You have alleged that your employer or any other worker has contravened the sexual orientation discrimination regulations
  • Your employer knows that you intended to do, or suspects that you have done or intend to do, any of these things
For example, you might have been subjected to victimisation if, because you took any of the above actions, you are prevented from going on training courses; or unfair disciplinary action is taken against you; or you are excluded from company social events.

Who is covered?

The sexual orientation regulations protect you from when you apply for employment, throughout the time that you are employed and even after you have left your employment. They apply to all employers in the private and public sector, vocational training providers, trade unions and professional organisations.

They cover employees, contract workers, office holders, partners of firms and people using employment agencies or related careers guidance services.

They cover recruitment, terms and conditions, promotions, transfers, dismissals and training. They even cover post-employment acts such as the refusal to provide references to ex-employees.

The sexual orientation regulations do not apply outside the employment field so they don't cover provision of goods or services.

Exceptions

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

  • Organised religion – an employer may require you 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 you 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, an employer 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 employers provide the following to persons of a particular sexual orientation, 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 employers 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.

What to do next

If you think you've been discriminated against because of your sexual orientation you can talk to:

  • Your employer
  • Your human resources department
  • Your trade union representative (if you belong to a union)
  • An official of a trade union (even if you do not belong to that trade union)
If possible, try to resolve the matter informally. If you cannot, you can follow your employer's grievance procedure. If your employer does not have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand the letter to your HR manager, or the person who manages your line manager. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our article on Grievance procedures in Northern Ireland.

If you're unhappy with the outcome of your appeal, you can, in certain circumstances, apply to an Industrial Tribunal. You'll need to do this within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim to an Industrial Tribunal within 3 months from the end of that period. You should, however, obtain legal advice before taking your claim to an Industrial Tribunal.

Further information

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.