This is a preview. To continue reading please log in or Register to read this article

Sexual orientation discrimination

Updating author: Tina McKevitt

Summary

  • The law relating to sexual orientation discrimination is governed by the Equality Act 2010. The core provisions of the Act, which repealed the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661), came into force on 1 October 2010. While the Equality Act 2010 largely consolidated previous discrimination legislation, it also: harmonised protection against harassment, so that it includes conduct related to a protected characteristic (removing the need for the characteristic to be that of a particular person); and removed the requirement for a comparator to establish victimisation. It is assumed that many of the principles that were established in the extensive body of case law that was decided under previous discrimination legislation will remain relevant in interpreting the provisions of the Equality Act 2010. For this reason such cases have been included in the body of this section together with an indication of the legislation under which they were decided.
  • Sexual orientation is a "protected characteristic" under the Equality Act 2010 and, under the Act, means sexual orientation towards persons of the same sex, persons of the opposite sex or persons of either sex. (See Meaning of sexual orientation)
  • The definition of "employee" for the purposes of protection against sexual orientation discrimination is wider than that contained in other employment legislation. (See Who is protected?)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. Under the wider provisions of the legislation, others who are not employers may find themselves liable. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, victimisation and harassment. (See Prohibited conduct)
  • It is unlawful to discriminate in the context of employment or vocational training including, in particular circumstances, after the working relationship has ended where the prohibited conduct arises out of and is closely connected to that relationship. (See Prohibited conduct in the employment context)
  • Direct discrimination is where, because of the protected characteristic of sexual orientation, a person treats another person less favourably than that person treats or would treat other persons. The less favourable treatment can relate to the person's actual or perceived sexual orientation, even where the perception is wrong, or to the person's association with someone who has, or is perceived to have, the protected characteristic. (See Direct discrimination)
  • Indirect discrimination is where person A applies to person B, to B's disadvantage, a provision, criterion or practice that A applies or would apply equally to persons not of the same sexual orientation as B, but which puts, or would put, persons of the same sexual orientation as B at a particular disadvantage when compared to other persons and which A cannot show to be a proportionate means of achieving a legitimate aim. (See Indirect discrimination)
  • An employer may be able to justify the discriminatory result of a provision, criterion or practice by establishing that it is justifiable because it is a "proportionate means of achieving a legitimate aim". (See Justification)
  • Harassment is where person A engages in unwanted conduct related to the protected characteristic of sexual orientation that has the purpose or effect of violating person B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her. (See Harassment)
  • Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. (See Protection from Harassment Act 1997)
  • Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a "protected act". (See Victimisation)
  • Employers may in certain circumstances lawfully restrict work to people of a particular sexual orientation. (See Occupational requirements)
  • People of a particular sexual orientation may be lawfully excluded from employment or appointment to a personal or public office in certain circumstances where the employment or appointment is for the purposes of an organised religion. Exceptions from unlawful sexual orientation discrimination also exist in relation to acts done for the purpose of safeguarding national security and benefits provided by reference to marital status in so far as those rights accrued prior to 5 December 2005. (See Other exceptions)
  • Terms that constitute, promote or provide for treatment that is prohibited under the Equality Act 2010 are unenforceable. It is not possible to contract out of the Act's provisions except by way of a conciliated settlement or a valid compromise contract. (See Terms)
  • Employers may, in certain circumstances, take measures to enable or encourage people who share a particular protected characteristic to overcome a disadvantage that the employer reasonably thinks is suffered by people with the same protected characteristic. Employers may also, in defined circumstances, appoint or promote a person with a protected characteristic in preference to another person who does not have the protected characteristic. (See Positive action)
  • With effect from 1 October 2010, all occupational pension schemes must be read as including a non-discrimination clause. The Equality Act 2010 allows sexual orientation discrimination in relation to benefits, facilities and services provided by reference to marital status in so far as those rights accrued or are payable in respect of periods of service prior to 5 December 2005. (See Pensions and other employment benefits)
  • Sexual orientation discrimination by a public authority may contravene the Human Rights Act 1998. (See Sexual orientation and human rights)
  • Public authorities have a general duty to eliminate discrimination, harassment and victimisation; advance equality of opportunity between persons who share a protected characteristic and those who do not; and foster good relations between persons who share a protected characteristic and those who do not. (See Public authorities)

Sector resources

Additional resources on this topic are available for the following sectors: