Sexual Orientation Discrimination

Until recently a lesbian, gay or bisexual employee was not protected from discriminatory treatment but this changed with the introduction of the Employment Equality (Sexual Orientation) Regulations 2003 (‘Sexual Orientation Regulations 2003’).

It is against the law for you to discriminate against, victimise or harass any of your employees because of their sexual orientation, or their perceived sexual orientation.

They are protected against sexual orientation discrimination if:

  • they are lesbian, gay, bisexual or heterosexual
  • people think they are gay, lesbian or heterosexual when they are not
  • they have gay friends or visit gay clubs

Protection against discrimination begins when a person applies for a job and continues throughout their employment. They are protected in relation to:

  • recruitment
  • terms and conditions of employment (including benefits such as pensions)
  • pay
  • employment status (eg if they are a worker or an employee)
  • training
  • promotion and transfer opportunities
  • redundancy
  • dismissal

Your employees have the right not to be harassed by colleagues even the sexual orientation of those employees goes against their religious beliefs.

You may wish to ask your employees for details about their sexual orientation, either for monitoring purposes or as part of an equal opportunities questionnaire, but you should be aware that your employees are not obliged to give this information.

There are four types of discrimination:

  • direct discrimination – where on the grounds of an employee’s sexual orientation, a person treats them less favourably than he or she would treat other people.
  • indirect discrimination - when you impose a specific provision, criterion or practice which places an employees of a particular sexual orientation at a disadvantage compared to other employees.
  • victimisation – when an employee is treated less favourably than someone else because they have made a complaint or given evidence in relation to an act of discrimination.
  • harassment – unwanted conduct which has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive workplace environment for your employee.

The discrimination suffered by an employee does not have to be intended or obvious and it is well recognised by tribunals that discrimination is often subtle or even accidental.

If you would like more detailed information about discrimination on the ground of sexual orientation, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us uniquely qualified to assist you with any sexual orientation issues you may have. Please contact us for an initial free consultation.

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