Sexual Orientation Discrimination Solicitors
Our employment law team have considerable experience in advising employees on the law relating to sexual orientation discrimination, including unfair treatment, harassment and victimisation. In some cases, an obvious comment, which has been witnessed, may lead to a claim. But discrimination is often more subtle and difficult to prove. Therefore, advice should be sought from specialist solicitors in this area.
IBB Law’s employment law team can provide clear, practical guidance on all areas of unlawful discrimination. Our team includes some of the region’s top ranked employment lawyers with decades of experience representing employees of all levels.
What is sexual orientation discrimination?
The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).
Whether you are an employee, a worker (engaged under a contract personally to execute work or labour), or a contractor (whose labour is supplied by your employer to another person) you are legally protected. You have rights whatever your length of service and whatever hours you work.
Sexual orientation is defined under the EqA as a person’s sexual orientation towards:
- persons of the same sex
- persons of the opposite sex
- persons of either sex.
Therefore, providing legal protection for gay men, lesbians, bisexuals and
A sexual orientation is simply an orientation towards persons of the same or opposite sex, or both sexes. The definition does not include particular sexual practices, nor preferences for particular types of sexual activity, such as sadomasochism or bestiality. Nor would it appear to cover celibacy.
Discrimination against transsexuals is not covered by sexual orientation discrimination but under gender reassignment discrimination.
Legal protection against sexual orientation discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.
What is direct sexual orientation discrimination?
This occurs where because of sexual orientation, a person is treated less favourably than another person not of that sexual orientation.
Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.
- an employer refuses to appoint a job applicant because it finds out that she has a same-sex partner, this will be direct sexual orientation discrimination.
In claiming direct sexual orientation discrimination, you will need to prove that you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours.
The appropriate test requires an employment tribunal to consider the reason why you were treated less favourably: what was your employer’s conscious or subconscious reason for the treatment?
For the purposes of establishing direct sexual orientation discrimination, it does not matter whether you have the protected characteristic in question it can be perceived sexual orientation. Nor does it matter whether you are a particular sexual orientation it can be by association.
- an employer treats an individual less favourably because it perceives that the employee is of a certain sexual orientation e.g. because the employer thinks the employee is a lesbian because she has short hair, wears trousers and likes football.
- an employer treats an individual less favourably because of the sexual orientation of someone with whom the employee associates e.g. the employer decides not to offer a job applicant a role when told that the job applicant’s daughter is a lesbian
It is no defence to a direct sexual orientation discrimination claim that the alleged discriminator shares the same sexual orientation as the victim.
Direct discrimination will also occur if your employer instructs, causes or induces another to commit sexual orientation discrimination. It will also commit an infringement if it causes detriment to you because e.g. you refuse to obey an instruction to act in a way that would disadvantage persons of a particular sexual orientation.
Direct sexual orientation discrimination cannot be objectively justified, but your employer might be able to rely on an exception, perhaps by pointing to an occupational requirement to avoid liability.
What are occupational requirements?
The EqA sets out occupational requirement exceptions an employer might rely on when facing discrimination claims in respect of recruitment, access to promotion, transfer or training, or dismissal. Those relevant to sexual orientation are:
General occupational requirement – this is available where, having regard to the nature or context of the work, not being of a certain sexual orientation is an occupational requirement.
Organised religion – this can apply where the employment is for the purposes of an organised religion. To comply with the doctrines of religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers, an employer might apply an occupational requirement of a particular sexual orientation.
Employment services – an employment service provider can treat a person of a particular sexual orientation less favourably if the treatment relates to work that could be refused to that person because of an occupational requirement.
What is indirect sexual orientation discrimination?
Indirect sexual orientation discrimination occurs where:
- your employer applies to you a provision criterion or practice (PCP)
- you have a particular sexual orientation
- your employer applies (or would apply) that PCP to persons not of the same sexual orientation as you
- the PCP puts or would put you at a particular disadvantage when compared to other persons without your sexual orientation
- the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
There will be no indirect discrimination if your employer’s actions are justified. To establishing justification, your employer will need to show that there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer.
In other words, indirect sexual orientation discrimination occurs where your employment is subject to an unjustified condition which because of your sexual orientation, you find more difficult to meet.
- a requirement to provide benefits to husbands and wives. This would have disproportionate adverse impact on those employees in a civil partnership and may not be justified.
In determining whether there has been a detriment, it will be necessary to establish a pool of people for comparison on a like-for-like basis of those that have and have not been affected by the PCP.
What is sexual orientation harassment?
Harassment occurs for a reason related to your sexual orientation if the conduct is unwanted and has the purpose or effect of:
- violating the person’s dignity or
- creating an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment will also occur where you submitted to or rejected harassment related to your sexual orientation because of your rejection of or submission to the conduct, your employer treats you less favourably than it would treat another person if that person had not rejected or submitted to the conduct.
Such conduct will only amount to harassment if in all the circumstances, your perception of the conduct, is reasonably considered to have that purpose or effect.
Your employer will be able to avoid liability for harassment if it can show it took reasonably practical steps to prevent it happening.
What is victimisation?
Victimisation occurs where you are treated less favourably than another person whose circumstances are the same because you:
- brought claim under the EqA
- gave evidence or information in connection with a claim under the EqA
- did any other thing for the purposes of or in connection with the EqA
- alleged that your employer or another person has committed an act that contravenes the EqA.
Less favourable treatment means a detriment (see above).
What remedies are available for sexual orientation discrimination?
If you are an employee, worker or job applicant who believes your employer (or another worker) has discriminated against you then you can bring an employment tribunal claim.
If you who believe that an organisation has discriminated against you in the provision of goods, facilities and services, you can bring a claim in the county court.
Tribunals and courts can award unlimited compensation, which can include an award for injury to feeling and financial loss because of the discrimination.
How long do you have to bring an employment tribunal claim?
An employment tribunal claim under the EqA relating to sexual orientation discrimination must be received by a tribunal within 3 months of the complaining act (i.e. 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.
The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.
Please see our page Acas early conciliation.
Contact our specialist sexual orientation discrimination solicitors today
IBB Law’s employment law specialists represent individuals at all levels no matter the size or sector of the company. If you feel that you have been subjected to unlawful discrimination, we can offer fast, reliable guidance on what to do.
Contact our specialist sexual orientation discrimination solicitors today on 03456 381381 or email your details to firstname.lastname@example.org.
The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
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