Marjon Law - Specialist Employment Lawyers

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Marc Jones - Leading Employment Law Solicitor - Marjon Law - Specialist Employment Lawyers

SEXUAL ORIENTATION DISCRIMINATION

A guide on sexual orientation discrimination from the employment law experts


Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.


If you would like urgent advice on discrimination, please contact us as soon as possible.


What is unlawful discrimination?


The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).


The EqA protects employees, workers (ie engaged under a contract personally to execute work or labour) and contractors (ie whose labour is supplied by an employer to another person). These rights apply whatever the length of service and whatever hours worked.


Legal protection against unlawful discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.


For the purposes of this web page we use the term employee.


What is sexual orientation discrimination?


Sexual orientation is defined under the EqA as an employee’s sexual orientation towards:


  • persons of the same sex
  • persons of the opposite sex
  • persons of either sex.


Therefore, providing legal protection for gay men, lesbians and bisexuals.


A sexual orientation is simply an orientation towards persons of the same or opposite sex, or both sexes.


The definition does not include particular sexual practices, nor preferences for particular types of sexual activity, such as sadomasochism or bestiality. Nor would it appear to cover celibacy.


Discrimination against transsexuals is not covered by sexual orientation discrimination but under gender reassignment discrimination.


What types of sexual orientation discrimination are there?


Sexual orientation discrimination can be:



What is direct sexual orientation discrimination?


An employer (or other person) discriminates against an employee under section 13 of the EqA, if:


  • because of an employee's sexual orientation
  • the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.


Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged.


An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.


In claiming direct sexual orientation discrimination, an employee will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.


For the purposes of establishing direct sexual orientation discrimination, it does not matter whether the employee is of a particular sexual orientation as discrimination can be:


  • by perception
  • by association


Examples of direct sexual orientation discrimination


  • an employer refuses to promote an employee because they are a lesbian
  • an employee is treated less favourably because he is perceived to be homosexual when they are heterosexual
  • an employer treats an employee less favourably because an employee’s sibling's sexual orientation.


Direct sexual orientation discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage employees of a particular sexual orientation.


What is indirect sexual orientation discrimination?


Indirect sexual orientation discrimination occurs under section 19 of the EqA where:


  • an employer applies to an employee a provision, criterion or practice (PCP)
  • the employee has a protected characteristic
  • the employer applies (or would apply) that PCP to persons who do not have that protected characteristic
  • the PCP puts or would put the employee at a particular disadvantage when compared to other persons without that protected characteristic
  • the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.


In other words, indirect an employer refuses to appoint a job applicant because it finds out that she has a same-sex partner discrimination occurs where the employee’s employment is subject to an unjustified condition which because of their sexual orientation, the employee finds it more difficult to meet.


In determining whether there has been a detriment, it will be necessary to establish a pool of employees for comparison on a like-for-like basis of those that have and have not been affected by the PCP.


Example of indirect sexual orientation discrimination


  • an employer provides benefits to husbands and wives is likely to disadvantage employees in a civil partnership and may not be justified.


The Equality Act 2010 (Amendment) Regulations 2023, a new provision of indirect associative discrimination has been introduced under section 19A of the EqA. The same provisions for ordinary indirect discrimination apply but extend to an employee who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from the PCP, but who nonetheless suffers together with that group.


What is harassment related to sexual orientation?


Harassment related to sexual orientation occurs under section 26 of the EqA during the course of employment if the conduct is unwanted and has the purpose or effect of:


  • violating an employee's dignity or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment.


Such conduct will only amount to harassment if in all the circumstances, the perception of the conduct is reasonably considered to have that purpose or effect. A one-off act can amount to harassment.


What is victimisation?


Victimisation occurs under section 27 of the EqA when an employee is treated less favourably than another person whose circumstances are the same because they:


  • brought claim under the EqA
  • gave evidence or information in connection with a claim under the EqA
  • did any other thing for the purposes of or in connection with the EqA
  • alleged that your employer or another person has committed an act that contravenes the EqA.


Justification for sexual orientation discrimination


There will be no indirect sexual orientation discrimination if an employer’s actions are justified.


To establish justification, an employer will need to show that there is a legitimate aim (ie a real business need) and that the PCP is proportionate to that aim. 


Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer.


Liability for sexual orientation discrimination


An employer will be vicariously liable for the acts of its employees and workers for sexual orientation discrimination unless it can show it took reasonably practical steps to prevent it from happening.


The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.


Why choose Marjon Law for sexual orientation discrimination advice and representation?


We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved workplace discrimination.


As specialist employment lawyers, our clients' interests are paramount to us. 


We ensure that all our clients receive the best advice possible.


We will advise on workplace discrimination and represent you in any subsequent employment tribunal claim.


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