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.
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:
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:
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.
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 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 for purposes of the sexual orientation discrimination regulations happens when you are treated less favourably than another employee because:
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.
There are a few exceptional circumstances where discrimination on the basis of sexual orientation will not be regarded as unlawful. Some of these are:
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:
If you think you've been discriminated against because of your sexual orientation you can talk to:
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.
You can get more information from thewhich 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.