Before the Employment Equality (Sexual Orientation) Regulations came into force in 2003, there was no specific protection for employees from discrimination on grounds of sexual orientation in the UK (although attempts had been made to use the human rights and sex discrimination legislation). The law on sexual orientation discrimination is now set out in the Equality Act 2010 (the Act) which provides for protection from discrimination in the workplace on the grounds of a number of protected characteristics including disability, race, sex, age, sexual orientation and religion or belief.
What is the definition of sexual orientation?
Sexual orientation is defined in the Act as a person’s sexual orientation towards people of the same sex; people of the opposite sex; or people of either sex. It therefore provides protection against discrimination for gay men, lesbians, bisexuals and heterosexuals.
Sexual orientation discrimination in the workplace
The law prohibiting sexual orientation discrimination in the workplace applies to all stages of the employment relationship including recruitment, terms and conditions of employment, promotions, transfers, training and dismissal – and there are a number of ways under the Act in which discrimination may occur.
These include where an employer or prospective employer has directly discriminated against an employee or job applicant by treating them less favourably because of their sexual orientation (for example, where a prospective employer refuses to offer an applicant a job because it is discovered that they live with a same-sex partner); or has discriminated indirectly against them by applying a provision, criterion or practice (such as a requirement to be of a particular sexual orientation) which disadvantages job applicants or employees of their particular sexual orientation without objective justification.
It is also possible for an employer to discriminate against someone because of their association with someone of a particular sexual orientation, for example, because an employee has gay friends, or because they perceive the employee to be of a particular sexual orientation, for example, where a heterosexual employee is treated less favourably because he frequents gay bars and does not have a girlfriend. It makes no difference that in fact he is heterosexual if the reason for the less favourable treatment is because he is perceived to be gay.
Discrimination on grounds of sexual orientation may be permitted in certain limited circumstances. For example, an employer may rely on the general occupational requirement exception where only people of a particular sexual orientation can do a particular job because of the nature of the job in question and where this can be objectively justified. This exception will rarely apply in the context of sexual orientation discrimination although it could perhaps apply to a role which involves giving personal advice to gay men or lesbians.
In addition, where the employment is for the purposes of an organised religion, an employer may apply a requirement relating to sexual orientation for limited specific reasons and where the requirement can be objectively justified. This exception would only apply to those who work for an organised religion, such as a priest, but would not apply where the employer is not an “organised religion” but merely has some form of religious ethos, such as a faith school.
Where a job applicant or employee has been discriminated against on grounds of sexual orientation, they must bring their complaint to the employment tribunal within three months of the discriminatory act. If the employer is found liable, they may be awarded compensation without limit, which will be calculated according to the financial loss suffered as a result of the discrimination. Compensation may also cover non-financial losses, such as an award for injury to feelings.