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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 sexual orientation discrimination first came into effect in December 2003 when the Employment Equality (Sexual Orientation) Regulations were implemented. On 1 October 2010, the Equality Act 2010 came into force. The Act consolidated all the previous discrimination laws, including the Employment Equality (Sexual Orientation) Regulations, into one Act, reconciling most of the differences between them and repealing the previous laws. The Equality Act applies to job applicants, all workers including contract workers and agency temps, apprentices, office holders, the police, and people in vocational training. It prohibits direct and unjustified indirect sexual orientation discrimination, victimisation and harassment related to sexual orientation. Everyone is equally protected, ie gay men, lesbian women, bisexual people and heterosexuals are all covered. There is no qualifying period of service necessary to make a complaint to a tribunal, and no limit on the amount of compensation that can be awarded.
Questions and Answers
Question
Once an employee 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 the previous employment relationship. For example, the ex-employee would have a claim for unlawful discrimination if the employer refused to provide a reference just because the individual, whilst employed, made a complaint of sexual orientation discrimination.
Question
Is it just gay men and lesbian women who are protected against discriminatory treatment?
Answer
No. The Equality Act 2010 prohibits discrimination and harassment because of "sexual orientation". This covers everyone, ie people who are heterosexual, or bisexual are protected as well as gay/lesbian people.
Question
Does the legislation protect a heterosexual employee who "hangs around" with a number of gay friends from harassment?
Answer
Yes, harassment on such grounds is within the scope of the legislation.
Question
In what circumstances is it possible lawfully to use the occupational requirement provisions?
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 jobs involving personal counselling on gay relationships or on heterosexual marriage.
Question
What should an employee do if he or she believes that he or she is the victim of sexual orientation harassment?
Answer
If the matter cannot be resolved through informal discussion, it should be raised through the workplace grievance (and/or harassment complaints) procedure. The complainant may also bring a claim of sexual orientation harassment to an employment tribunal. Complaints to the employment tribunal can be made whilst the person is still in employment, or after dismissal or resignation.
Key Facts
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The provisions on sexual orientation discrimination protect not only gay men and lesbian women against discrimination, but also heterosexuals and people who are bisexual.
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Direct discrimination occurs when a person is treated less favourably than another person was or would have been treated because of actual or perceived sexual orientation.
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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, or would put, a person of a particular sexual orientation at a disadvantage because of his/her sexual orientation and which cannot be justified.
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It is possible to justify the employment of a person of a particular sexual orientation if there is an occupational requirement, eg where the duties of the job require the post-holder to be of a specific sexual orientation.
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Individuals are protected from being victimised for bringing, or assisting with, a complaint about sexual orientation discrimination or harassment.
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An employer is liable for any discriminatory acts and harassment carried out by its employees in the course of their employment.
