Employers will be aware that it is unlawful for them to discriminate against an employee on the grounds of their sexual orientation. But how far does this go? Ben McCarthy, lead researcher and employment law writer at Croner-i, examines this in more detail.

The Equality Act 2010 sets out the protection from discrimination of individuals on the basis of their sexual orientation. It is important to remember that for the purposes of this Act, “sexual orientation” means:

  • orientation towards people of the opposite sex

  • orientation towards people of the same sex

  • orientation towards people of both the opposite and same sex.

Protection, therefore, does not only apply to homosexuals and bisexuals; it is also possible for a heterosexual person to claim that they have been discriminated against because they are not homosexual or bisexual. It is unlawful to discriminate against someone on these grounds either directly or indirectly, to subject them to harassment or to victimise them because of their sexual orientation. For example, it would be direct discrimination to refuse to employ an individual purely because they are gay, or to deny them promotion, or to dismiss them. That all seems quite logical, but recent developments have confirmed that direct discrimination can also be manifested in other far-reaching circumstances. Sexual orientation protection covers a wide range of situations and employers should be aware that the legislation applies where it might not be obviously apparent.

Discrimination by association

It need not necessarily be the complainant’s own sexual orientation that is causing the behaviour about which they are complaining. Direct discrimination can include circumstances when a person is discriminated against because a family member of theirs is gay, because they have a number of gay friends, or even just because they are heterosexual but enjoy going to gay clubs. This is termed “associative discrimination” and establishes protection for individuals because they are “associated” with a particular sexual orientation, although they do not possess the particular characteristic themselves. To refuse promotion for, or to dismiss an employee because, for example, their son is gay, entitles that person to claim at tribunal that they have been discriminated against.

Perceived sexual orientation

Similarly, protection also extends to an individual on the basis of their “perceived” sexual orientation. This is distinguishable from associative discrimination because it is the individual’s own sexual orientation that is at the centre of the treatment. However, perceived discrimination is based on thoughts that the individual is, for example, a lesbian, but they are in fact heterosexual. If an individual was denied the opportunity to undertake some training, for example, because their manager thought they were a lesbian when, in fact, they were not, they would be entitled to make a claim at tribunal of discrimination. The umbrella of sexual orientation protection has also been cast so widely as to cover the circumstance where an individual is not gay, his colleagues know that he is not gay and the individual is aware of that fact, but the colleagues subjected the individual to homophobic abuse on the basis of his boarding school background and that fact that he lived in Brighton. Although the courts found this to be a very narrow and rare situation, they found that this person was protected and had been subjected to harassment on the grounds of sexual orientation.

A further example of the wide ambit of the Equality Act 2010 is that employees are able to claim harassment even though the particular behaviour is not directed at them. For example, Employee A shares an office with Employee B. Employee A is gay and is frequently teased and humiliated by his manager about his homosexuality. Employee B is entitled to claim harassment even though he is not gay and the teasing was not aimed at him, because the manager’s behaviour has also created an offensive environment for him.

The “banter” defence

Unless employers can show that they have taken steps to ensure that their staff do not treat each other in a way that could be deemed as discriminatory, they themselves will be held liable should any such act take place. This applies whether any act of discrimination carried out against an employee was done with or without their employer’s knowledge. Gay employees have been successful at employment tribunal in claims of discrimination because workplace ”banter” of a sexual nature was such that it could easily offend. In one particular case, the banter took place at a workplace event — and so outside of the usual workplace — but was still held to have occurred in what was an extension of the workplace. Furthermore, in the case of Bivonas v Bennett, the Employment Appeal Tribunal held that a claimant who had found a note referring to him as a “batty boy” was discrimination despite the fact that the note had been written by colleagues who had not intended for him to find it. He had still been subjected to discrimination as the comment was related to his sexual orientation.

Working against sexual orientation discrimination

Compensation for discrimination at the employment tribunal is unlimited and can potentially include an additional award for injury to feelings. First and foremost, all companies should maintain an equal opportunities policy which outlines its zero tolerance approach towards the type of behaviour and the consequences for doing so. The policy should also cover what the company will do to work against discrimination arising throughout the employment of individuals in the company. For example, it is important that those responsible for recruitment in an organisations are aware that their decisions on who to recruit or promote should not be done on the basis of someone’s sexual orientation. Discrimination protection extends to those who apply for a job as well as those who are already employed. For this reason, employers should keep detailed notes on their recruitment processes, explaining why a particular candidate was chosen so that they can show the decision was based on merit alone.

Employers should also treat the sexual orientation of their employees with sensitivity. If an employee informs their employer that they are gay and also says that they do not want anyone else in the organisation to know, then the employer should respect their wishes. Telling other people about someone’s sexual orientation against their wishes could be harassment, entitling the employee to make a claim for discrimination at employment tribunal. It could also be a breach of data protection law because sexual orientation is deemed as sensitive data which means that, if details are stored, they are considered confidential and should be processed carefully.

Conclusion

Continued scrutiny is being placed on workplace inequality, with sexual orientation remaining a key area in which issues are arising. To this end, it is important that employers are aware of the varied forms of discrimination that can arise and, specifically, are prepared to take steps to tackle this.

Seek professional advice

For professional advice on dealing with any HR matters, speak to a qualified consultant on 0844 561 8149.

Last reviewed 18 March 2020