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This section provides general information on employment law. If you have specific questions, you should seek legal advice from a lawyer or trade union.
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The information in this section of the Diversity Toolkit has been compiled Croner, an organisation providing information, advice and support in the areas of employment, health and safety and environmental compliance.
Sexual Orientation Discrimination
Summary
Protection against discrimination in employment and vocational training on the grounds of sexual orientation was enacted in 2003 under European equal treatment law. The protection includes job applications, the employment relationship and certain aspects of the ending of that relationship. The structure of these Regulations is broadly similar to that under other anti-discrimination laws, eg on grounds of sex, race and disability. They encompass free-standing protection against harassment. The Regulations cover homosexual, bisexual and heterosexual people. The principal remedies are provided through a claim to an employment tribunal.
Questions and Answers
Question
Once a person has left employment, is he or she protected from discrimination or harassment on the grounds of sexual orientation?
Answer
Yes, to a limited extent - where it can be shown that the discrimination or harassment is closely connected to that employment relationship. For example, in the provision of a reference, the employer should not be discriminatory.
Question
Is it just gay men and lesbians who are protected?
Answer
No. The Regulations cover discrimination and harassment on the grounds of "sexual orientation". This clearly covers those who are heterosexual, homosexual or bisexual and any discrimination or harassment on those grounds.
Question
Do the Regulations protect from harassment a heterosexual person who "hangs around" with a number of gay friends?
Answer
Yes, harassment on such grounds is within the scope of the Regulations. Following the case of English v Thomas Sanderson Ltd [2008] EWCA Civ 1421, it does not matter whether the employee is perceived to be gay or not.
Question
In which circumstances is it possible lawfully to use the genuine occupational requirement provision?
Answer
The most likely circumstances are where the employer, on the grounds of social welfare, needs a person of a particular sexual orientation to perform a specific job. Examples might include counselling on gay relationships or on heterosexual marriage or partnerships.
Question
What should a person do if he or she believes that he or she is the victim of harassment or discrimination?
Answer
The issue should, in the first instance be raised through the workplace grievance (and/or harassment) procedure to see if the matter can be resolved. The complainant would be able to use the statutory right to be accompanied. The complainant may also make a claim to an employment tribunal. Complaints to an employment tribunal can be made while a person is still employed, or after dismissal or resignation. An aggrieved job applicant can also bring a claim to an employment tribunal.
Key Facts
- Sexual orientation is defined as orientation towards persons of the same sex (lesbians and gay men) towards persons of the opposite sex (heterosexuals) and towards persons of both the same sex and the opposite sex (bisexuals).
- Direct discrimination occurs when a person is treated less favourably than another person on grounds of his or her actual or perceived sexual orientation.
- Indirect discrimination occurs when an employer applies to an employee (or job applicant) a "provision, criterion or practice" that is applied equally to others and which puts a person of a particular sexual orientation at a disadvantage and the person suffers that disadvantage.
- It is possible to justify the employment of a person of a particular sexual orientation so long as the employer can justify such employment as a genuine occupational requirement.
- Individuals are protected from being victimised for bringing, or assisting with, a complaint about discrimination or harassment.
- An employer is liable for any discriminatory acts and harassment carried out by its employees in the course of their employment.
