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 Equality Act 2010 defines 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 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 Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator, (such as their personality).

The law also extends to protecting you 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 may have been subjected to direct sexual orientation discrimination if you are refused a promotion because your employer perceives you to be homosexual, but your colleague is promoted, whose circumstances are similar to yours, except that your employer doesn't have the same perception about their sexual orientation
  • The sexual orientation of another person (also known as discrimination by association). For example, if you are able to establish that you are being treated less favourably because you have gay friends or have 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. You must also actually suffer that particular disadvantage.

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 homosexuals 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 to achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived sexual orientation, or association with someone who is homosexual, heterosexual or bisexual. 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.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

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 may be unlawful.

For example, if you attended a public school, it will be unlawful for someone to harass you by incorrectly assuming that you are therefore homosexual.

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

Employers will be 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 to you whilst 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 or on the grounds that the actions were reasonable or warranted.

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

Victimisation

Victimisation happens when you are treated less favourably 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 of sexual orientation discrimination made by another worker
  • You have taken any other action under the Equality Act 2010 regarding sexual orientation discrimination
  • You have alleged that your employer or any other worker has contravened legislation affecting sexual orientation discrimination
Your employer believes that you have done or may 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?

Protection against sexual orientation discrimination applies to employees, contract workers, office holders, partners of firms and people using employment agencies or related careers guidance 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

Positive action in training and applying for particular positions

If an employer reasonably thinks that a group of its workers who share a protected characteristic (race, age, sex, sexual orientation, marital status, gender reassignment, pregnancy and maternity, disability or religion or belief) either...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in an employer's workforce,
...then the employer can take any proportionate action which, either; enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

Employers are allowed to provide special training to members of the group. They can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

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, unless they meet the circumstances described below under 'Positive action in recruitment and for promotions', 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 the circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. Employers will be able take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • An employer does not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

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, but if not, 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 boss of 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 England, Wales and Scotland.

If you're unhappy with the outcome of your appeal, you can, in certain circumstances, apply to an Employment 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 Employment Tribunal within 3 months from the end of that period. You should, however, obtain legal advice before taking your claim to an Employment Tribunal.

For further information

See the Acas guide for employers and employees in respect of sexual orientation and the workplace. More information is also available at the Department of Business, Innovation and Skills website.