Sexual-orientation discrimination in good and services

Discrimination at work on the basis of sexual orientation was first dealt with by theEmployment Equality (Sexual Orientation) Regulations 2003, which made this unlawful. This has now been absorbed into the provisions of the Equality Act 2010 (‘EA’), which provides protection for lesbian, gay and bisexual individuals (but not for specific sexual orientation practices). These individuals may fall into the category of ‘worker’ or apprentice, or may be members of the police force, those holding office, such as the director of a company, as well as barristers and trade organisers, and many others – the protection is broad.

The protection of the EA starts at the beginning of the recruitment process and continues throughout an employee’s contract of employment – including anyvocational training. It may extend beyond the end of a contract of employment in some circumstances, such as the requesting of a reference where the reference given is discriminatory. Where the discriminatory conduct is carried out by the employer, clearly the employer is then responsible. However, an employer may also be responsible for the conduct of agents, other employees and in some situations third parties. There is no option for a small employer to opt out of this legislation.

Sexual orientation discrimination under the EA comes in four forms – direct, indirect, victimisation and harassment.

Direct discrimination will be less favourable treatment on the basis of sexual orientation, which has resulted in a disadvantage or detriment to the person against whom the conduct is directed. This could be as a result of the sexual orientation of the person in question, because of a perception that they have a certain sexual orientation, or the sexual orientation of someone they are associated with. Although there is no need to show that there has been a motive for the conduct (i.e. it can be ‘unconscious’), there will need to be a comparator to compare the conduct against – this should be someone (real or hypothetical) whose life is ‘not materially different’ to that of the complainant, other than being of a different sexual orientation. Directly discriminatory behaviour may be directed at someone of a certain sexual orientation by another person of the same sexual orientation.

Example: a lesbian woman who is dismissed from her employment because she is a lesbian.

Indirect discrimination is a workplace provision, criterion or practice that applies to everyone (including the person complaining of discrimination) that puts a group with the same sexual orientation at a disadvantage compared to a group of a different sexual orientation. For a provision, criterion or practice to be indirect discrimination it must not be objectively justifiable – a proportionate means of achieving a legitimate aim.

Example: a recruitment advertisement requires those applying for the role to be married.

Victimisation will occur where a person is involved in good faith with the provisions of legislation (the EA or the Employment Equality (Sexual Orientation) Regulations 2003) concerning sexual orientation discrimination and is treated unfavourably as a result of this. This may be where someone is bringing an action themselves, providing information or evidence connected with an action, alleging that the legislation has been contravened or doing anything in relation to the discriminator or any other person under or by reference to the legislation.

Example: An employee is dismissed after giving evidence to support a colleague’s claim for sexual orientation discrimination.

Harassment is a situation where conduct carried out on the basis of sexual orientation towards someone is unwanted and violates their dignity, or is intended to violate their dignity, resulting in an environment that is hostile, offensive, intimidating, humiliating or degrading. Where there is harassment on more than two occasions by the same party (this could be another employee or a third party, such as a customer) and an employer knows of this but fails to take action to prevent the situationhappening again, the employer may be held responsible for the harassment.Harassment may still exist where the conduct is directed at someone because of someone else’s sexual orientation, or because a person is perceived to have a certain sexual orientation.

Example: An employee receives verbal abuse in the workplace as a result of colleagues thinking they are gay.

Exceptions

Religious organisations and those with a ‘religious ethos’ are permitted to discriminate on the basis of sexual orientation. These organisations can choose not to employ someone because of their sexual orientation, as long as it is relevant to the role –it would be difficult to justify this decision for a cleaner, for example.

Objective justification of discrimination makes it lawful – however, this may well be difficult to establish with respect to sexual orientation. There must be a good reason for the discrimination.

Claims for sexual orientation discrimination

The remedies available

Where sexual orientation discrimination is found, an Employment Tribunal can take a number of steps. The Tribunal may recommend that the employer take a certain course of action, make a declaration of the parties’ rights, re-engage or reinstate an unfairly dismissed employee, and award compensation.

Compensation is for damage directly caused by the discrimination and the amount that can be awarded is limitless. Loss of earnings (including interest) and loss of future earnings, hospitable employment, injury to health or feelings may all play a part in the compensatory amount.

Making a claim

A claim under the EA must establish ‘clear facts’ that could be used by an Employment Tribunal to determine that the discrimination has taken place. Once clear facts have been provided then the party against whom the claim is made must explain the conduct, including how it is not based on the employee’s sexual orientation.

Claims for conduct prior to 6th April 2009 – or through that date – where a claim has been lodged with an Employment Tribunal, may need to be made under a different set of rules.

Claims relating to conduct on or before 1 October 2010 should be brought under the EA and previous legislation – the Employment Equality (Sexual Orientation) Regulations 2003.

Claims for anything that happened after 1 October 2010 should be brought under the EA

A sexual orientation discrimination issue that is raised in the workplace will usually require the parties to follow the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk), which is intended to help solve workplace disputes. There are some significant penalties for both employers and employees who don’t follow the Code in a situation where it is required – for example any compensation an employee receives from an Employment Tribunal may be reduced by up to 25%.

A sexual orientation discrimination claim should be made within three months less one day of the behaviour that is complained about, or where the conduct was ongoing, on the last day of that behaviour or conduct. An Employment Tribunal may extend the time limits where it is just and equitable to do so, but will not do this in every case so someone making such a claim should not rely on an extension.

A questionnaire can be used by someone making a claim to obtain information from an employer. This is served before, or within 28 days of, a claim being made to an Employment Tribunal. An Employment Tribunal can infer unlawful discrimination where a questionnaire is not completed by an employer, or where it is not completed properly. An inference of unlawful discrimination can also be drawn if an employer fails to follow any relevant Codes of Practice.