Sexual orientation is one of the nine protected characteristics covered by the Equality Act 2010 and it makes it unlawful to discriminate against someone because of their sexual orientation.
Sexual orientation is defined as the gender someone is attracted to; it does not include their sexual practices or preferences for sexual activity.
Employees, agency workers, trainees and the self-employed all have protection from sexual orientation discrimination at work, including in relation to their recruitment, terms and conditions, pay and benefits, training, redundancy and dismissal.
There are four main types of sexual orientation discrimination:
- Direct Discrimination is where the individual is treated less favourably because of their sexual orientation, their perceived sexual orientation or the sexual orientation of someone they associate with.
- Indirect Discrimination is where a policy, practice, procedure or workplace rule applies to all employees, but, whether intentionally or not, disadvantages people of a particular sexual orientation.
- Harassment is unwanted conduct relating to sexual orientation and has the purpose or effect of violating the individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Harassment due to sexual orientation could be a verbal or written comment and what may be considered to others as a 'joke'.
- Victimisation is where the individual suffers a 'detriment' which causes them disadvantage, damage, harm or loss, because they have made or supported a complaint about sexual orientation discrimination.
Can Being Treated Differently Due to Sexual Orientation be Lawful?
If an employer can show that the individual has to be of a particular sexual orientation in order to do a certain job, they can insist on employing someone of that sexual orientation. This is described as 'genuine occupational requirements' and does not amount to discrimination. It’s rare that this exception will apply, as there is very little work that is dependent on a specific sexual orientation.
This is more likely to apply to jobs where the religion of the employee is important. For example, the Equality Act does have specific exemptions for where the employment is for the purpose of organised religion, such as being a Minister or otherwise promoting or representing the religion. But theoretically roles can also be restricted to people of a particular sexual orientation.
If You Have Suffered from Sexual Orientation Discrimination
In some circumstances, it may be appropriate for the complaint to be dealt with on an informal basis. This can prevent the complaint escalating and can allow for it to be dealt with sensitively without the need to make the complaint formally.
If the employee’s complaint cannot be resolved informally, the employee can raise a formal grievance with their employer. If the matter is still not resolved the employee may wish to pursue a discrimination claim against their employer, and the individual who discriminated against them, in an Employment Tribunal.
If you believe you have suffered sexual orientation discrimination by your employer or colleague, you should get legal advice as soon as possible.
See Case Study: Sexual Orientation Discrimination Case Settled for £30,000