August 6, 2018

Sexual orientation is a protected characteristic under the Equality Act 2010. Under the act, sexual orientation is defined as:

  • Sexual orientation towards people of the same sex;
  • Sexual orientation towards people of the opposite sex;
  • Sexual orientation towards people of both sexes.

It is important to note that sexual orientation discrimination is a different protected characteristic to those of sex (gender) and marriage and civil partnership which are both protected characteristics in their own right.

There are four main ways in which discrimination can occur:

  • Direct discrimination: treating an employee less favourably because of their sexual orientation or how their sexual orientation is perceived or the sexual orientation of someone they are associated with.
  • Indirect discrimination: this is when a provision, criterion or practice is equally applied to all staff but disadvantages a certain group of employees who share the same sexual orientation.
  • Harassment: unwanted conduct of a sexual nature relating to a person’s sexual orientation. The conduct must have the purpose or effect of creating an intimidating, hostile or humiliating environment for an individual.
  • Victimisation: when an individual suffers detrimental treatment because they have made or supported a claim of discrimination or harassment.

There are several key areas where sexual orientation discrimination is most likely to occur:

Recruitment

When advertising for a position, it is best to avoid any reference to only wanting candidates of a particular sexual orientation.

Sexual orientation should not be mentioned in the advert at all.

The advert should mention if possible the employer’s commitment to equal opportunities.

Advertising solely on one platform is likely to exclude large groups of potential candidates. Using at least two different forms of advertising will ensure that a wide range of candidates will be available to choose from.

Salary and Terms and Conditions

Employers must ensure that the terms and conditions of employment do not cause any detriments or exclude people of a certain sexual orientation in any way.

Employers should pay careful attention to policies and terms and conditions concerning death in service benefits, parental leave or pension benefits.

Promotion

Employers should be mindful not to overlook certain employees for promotion, based on their actual or perceived sexual orientation, or the sexual orientation of someone they are associated with. It would be discriminatory if an employer:

  • Only shared the promotion with people of a certain sexual orientation;
  • Refused to promote an employee because they had previously made a grievance about sexual orientation discrimination;
  • Not promoted an employee as it was believed that they would not fit into the new team because of their sexual orientation.

Training

Employers should ensure that training opportunities are available to everyone.

Make sure that certain employees are not excluded from training based on their actual or perceived sexual orientation, or the sexual orientation of someone they are associated with, as this could be seen as discriminatory.

If the reasons for withholding training are to make the candidate less likely to be selected for promotion or more likely to be selected for redundancy then with will be discriminatory.

Dismissal

A dismissal would be unfair if an employee were dismissed because of their actual or perceived sexual orientation, or the sexual orientation of someone they are associated with.

Research by ACAS has found that more than 40% of claims to the Employment Tribunal regarding sexual orientation discrimination also involves a claim for unfair dismissal.

Everyone in an organisation should be aware of sexual orientation discrimination and how it can potentially occur.

Employers should ensure that they have a clear policy in place that prevents discrimination, and details acceptable and unacceptable behaviour.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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