Updating author: Tina McKevitt

On this page:
Summary
Future developments
Practical example
Action point checklist
Key references
Questions and answers
Sexual orientation and sex discrimination
Sexual orientation and human rights
Meaning of sexual orientation
Who is protected?
Territorial scope of the Regulations
Who is liable?
Discrimination after the working relationship has come to an end
Unlawful discrimination
Direct discrimination
Indirect discrimination
Harassment
Protection from Harassment Act 1997
Victimisation
Genuine occupational requirements
Positive action
National security
Pensions and other employment benefits

Summary

6.634

• Discrimination on grounds of sexual orientation has been held not to be sex discrimination. (See 6.636 Sexual orientation and sex discrimination)
• Sexual orientation in the Employment Equality (Sexual Orientation) Regulations 2003 is sexual orientation towards persons of the same sex, persons of the opposite sex or persons of the same and opposite sex. (See 6.638 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 6.639 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 6.641 Who is liable?)
• Some discrimination and harassment after employment ends will be unlawful where it arises out of and is closely connected to that employment relationship. (See 6.642 Discrimination after the working relationship has come to an end)
• Direct discrimination is where, on grounds 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. (See 6.644 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 6.645 Indirect discrimination)
• Harassment is where, on the grounds of sexual orientation, person A engages in conduct 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, or is reasonably considered by B to have this effect even where it was not intended. (See 6.646 Harassment)
• Victimisation is where someone is treated less favourably than others are or would be by reason that he or she has done, is intending to do, or is suspected of intending to do a 'protected act'. (See 6.648 Victimisation)
• Employers may in certain circumstances lawfully restrict a job to people of a particular sexual orientation. (See 6.649 Genuine occupational requirements)
• Employers may in certain circumstances lawfully discriminate in training to fit people of a particular sexual orientation for particular work or encouraging them to take advantage of opportunities for doing particular work. (See 6.650 Positive action)
• There are exceptions from unlawful sexual orientation discrimination 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 6.651 National security and 6.652 Pensions and other employment benefits)

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Future developments

6.635 Equality Bill: Existing discrimination legislation is to be consolidated into a single Equality Act in order to provide a simpler, more consistent legal framework for preventing discrimination.