Facing a discrimination claim is an employer’s worst nightmare come true.
Not only can it cause disputes, disrupt team dynamics, negatively affect morale and taint your reputation, it can significantly hit your wallet. There is no cap on the compensation that can be awarded for successful discrimination claims, so it’s absolutely essential that employers get to grips with the Equality Act to prevent sexual orientation discrimination.
Discrimination based on sexual orientation
Sexual orientation is one of the nine ‘protected characteristics’ listed in the Equality Act. Essentially this means that you cannot discriminate against an employee because of their sexual orientation towards those of the same sex, opposite sex or either sex.
You may be surprised but discrimination can take a number of forms. Some are more obvious than others, but all need to be avoided in your workplace.
A prospective or actual employee is directly discriminated against by another person if they treat the individual less favourably than they treat others and this is because of their sexual orientation.
For example, you decide not to promote a female employee and offer it to a less experienced and skilled worker because she mentioned that she has a girlfriend.
Direct discrimination includes associative discrimination and perceptive discrimination.
There are cases where a person is discriminated against as a result of someone else’s sexual orientation. In essence, this means that the employee is treated less favourably because of their association with a third party, such as a spouse, partner, sibling or child.
For instance, a job applicant has been offered a role, but this is withdrawn once the employer finds out their daughter is bisexual. This could constitute discrimination because even though the applicant is not bisexual, she is associated with someone who is.
There are cases where a person is treated less favourably because other people believe they have a protected characteristic, but in fact, they do not. The discrimination is based on perception, rather than reality.
For example, if you do not hire someone because you think they are homosexual, but in fact, they are heterosexual.
Indirect discrimination occurs when a company’s policies, procedures or rules which apply to everyone has the effect that people with a certain protected characteristic are put at a disadvantage when compared with those who do not share it.
For instance if you only offer employee benefits to heterosexual couples, this may constitute indirect discrimination.
It may be justified if you have a good business reason and it’s a proportionate means of achieving a legitimate aim.
This can be defined as unwanted conduct related to sexual orientation, which has the aim or effect of violating a person’s dignity or makes the workplace feel hostile, degrading, humiliating or offensive.
Examples include bullying, nicknames, abusive language or inappropriate questions. This means that a bit of ‘banter’ could actually be harassment.
You need to also remember that many people do not want their personal life and choices to become the centre of office gossip. If you disclose to people another’s sexual orientation against the person’s wishes, this can amount to harassment.
A person victimises an individual if they treat someone badly because they have performed a ‘protected act’ (for example, made a claim for discrimination or helped someone make their claim) or they believe that have done so or suspect they will. Treating some badly could mean being excluded from conversations or activities, denying someone a promotion, denying them training opportunities, disciplining them or dismissing them.
So now we understand the different types of discrimination, here is what every employer needs to know:
- It covers the whole process, including any discrimination that occurs during the recruitment stage, employment (for instance, promotion and training), dismissal and redundancy and when providing references.
- For discrimination cases, there is no minimum length of service required. Whether an employee has been working for you one day or ten years, they can make a claim.
- In the discrimination context, the term ‘employee’ is broad. It covers workers and agency workers.
- It’s important to be aware that it’s not unheard of for a claim of discrimination based on sexual orientation to touch on other protected characteristics.
- It’s always helpful to have documented policies and procedures in place, which clearly set out your standards and expectations and, where possible, you should train managers and supervisors to identify concerns.
- Employees should be made aware that it’s their responsibility that their behaviour doesn’t cause offence and to stop immediately if they are told that it’s unwanted or crosses the line.
- In very select circumstances, an employer may be able to say that they require someone with a specific sexual orientation in order to undertake the role but this rarely applies in practice.
- If an employee raises a formal grievance about discrimination, make sure that you investigate to see if there is any merit to the complaint and take appropriate action.
If you are facing any concerns in your workplace, seek legal advice at the earliest opportunity.