Sexual orientation discrimination (LGBT)

 

 

Sexual Orientation

What is sexual orientation discrimination?

Sexual orientation is the term used to describe what gender or genders someone is sexually or romantically attracted to. It is against the law for you to be discriminated against at work because of who you are sexually or romantically attracted to. As a Lesbian, Gay, Bi, Trans (LGBT) or straight employee you have all the employment protections that come with being an employee. (Paragraphs 55-57 of the Equality Act explanatory notes clarify this point further). In addition, you have the protected characteristic of sexual orientation under the EQA 2010, and are specifically protected from discrimination at work by;

 

What you can do about  sexual orientation discrimination

There is no need to tolerate discrimination at work, when there is such an effective law protecting you from it. The law is only useful if you use it. If you are facing discrimination because of your sexual orientation, you must first raise a formal grievance with your employer, to give your employer an opportunity to put things right. At the same time, you can submit a discrimination questionnaire to your employer to help you collect evidence about the discrimination. If you have already been fired and you think your dismissal was connected to or because of your sexual orientation, you should write a Letter before Claim to your employer within three months of your dismissal. If a grievance does not resolve the matter, you should contact the free ACAS Early Conciliation service for assistance. There are strict time limits for submitting a claim to the Employment Tribunal. The time-limit is usually three months less one day for each act of discrimination.   Contact Employee Rescue if you need help doing any of this.

Resources to help you deal with Discrimination at work

discrimination grievance        cilinniesaysebook121515b      questions procedure cover

  1. How to write a grievance about Discrimination at Work
  2. How to use the Questions Procedure for Discrimination Claims
  3. How to prepare a Discrimination Schedule of Loss for the Employment Tribunal

The Law on sexual orientation discrimination at work

The Equality Act 2010 

The law on sexual orientation discrimination is primarily contained in the EQA 2010 which protects LGBT people who are;

  • actual and prospective employees;
  • ex-employees;
  • apprentices;
  • some self-employed workers;
  • contract workers;
  • actual and prospective partners in a partnership or a limited liability partnership; and
  • people seeking or undertaking vocational training.

Under Section 12 of the Equality Act 2010 (EQA 2010) people who are attracted to the opposite sex or gender, same sex or gender, both sexes or more than one gender are protected from discrimination because their sexual orientation is a “protected characteristic“. This protection applies equally to straight people. Discrimination on the basis of a protected characteristic is unlawful. Protected characteristics are listed in Section 4 EQA 2010 as age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These are the particular unique characteristics which are protected under EQA 2010.  This protection extends to all aspects of your employment including dismissal, terms and conditions of employment, pay and benefits, promotion and transfer opportunities, training, recruitment and redundancy. There is no qualifying period of employment for any discrimination claim, so you don’t need to have worked for two years before submitting a claim to the Employment Tribunal.

Inter-sex people are not explicitly protected from discrimination by EQA 2010, but you must not be discriminated against because of your gender or perceived gender. All LGBT people have the protected characteristic of sexual orientation and have the protection of EQA 2010.

 

The Protection from Harassment Act 1997

Under the Protection from Harassment Act 1997(PHA 1997) it is unlawful to “pursue a course of conduct” that the perpetrator knows, or ought to know would amount to harassment. Harassment is not formally defined in the PHA 1997 but does include oppressive and unreasonable behaviour, calculated to cause alarm or distress. This Act was originally intended as an anti-stalking measure. S1 PHA 1997 creates two classes of criminal offence. The lesser offence is liable to summary conviction, whilst the offence of harassment can also constitute an offence under the Police and Criminal Evidence Act 1984 s.24(2).   S3 provides that any offence under S1 may be the subject of a civil claim by the affected person. You can bring a claim under this Act up to 6 years after the event rather than the 3 months allowed under anti-discrimination law.

Under PHA 1997, your employer can be vicariously liable for a course of conduct by your colleague that is seen as harassment. The harassment does not need to be because of a protected characteristic. In Majrowski v Guy’s and St Thomas’s NHS Trust [2006] Mr Majrowski sued Guys and St Thomas’s NHS Trust under the PHA 1997 claiming that his manager bullied him because he was gay. The House of Lords said that the PHA 1997 created rights, including a right to damages, and also included vicarious liability.

 

The Data Protection Act 1998 

The Data Protection Act 1998 (DPA 1998) protects your confidential information at work. It says that any information about your sexual orientation is “sensitive personal data” which can only be processed for specified reasons which are set out in the DPA 1998. This means that information about your LGBT status cannot be recorded or passed on to any one unless the conditions in Schedules 2 and 3 of the DPA 1998 are met. You will be entitled to compensation from your employer if you suffer any damage because your employer has not taken care of your information.

 

The Human Rights Act 1998 

Article 8 of the Human Rights Act 1998 (HRA 1998) protects your right to respect for your private and family life at work if you are employed in the public sector. This includes your right to express your sexual orientation, to live a particular lifestyle and to choose the way that you look and dress. It also means that your personal information should be kept securely and not shared without your permission. Article 3 prohibits torture, and inhumane or degrading treatment or punishment. Article 14 says that all of the rights and freedoms in the HRA 1998 must be protected and applied without discrimination on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or any other status.

 

The Gender Recognition Act 2004

The Gender Recognition Act 2004 (GRA 2004), allows you as a Trans person to get a Gender Recognition Certificate (GRC) if you have permanently transitioned. The GRC allows you to change your legal gender if you are over 18 by getting a new birth certificate which allows you to be recognised in law by your acquired gender. If you have a GRC, section 22 GRA 2004 says that all information about your gender history is “protected information” which must not be passed on to anyone without your permission. Protected information is defined in s22(2) GRA 2004. Section 22 is designed to protect the privacy rights of Trans people under Article 8 of the European Convention on Human Rights by criminalising the disclosure of information relating to your gender history by a person who got hold of that information in an official capacity. This right is further explained by the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005.  Having a GRC has no bearing on your employment or employment protection. It just gives another layer of privacy.

How does the Equality Act protect me at work? 

Under section 39 EQA 2010, it is against the law for your employer to discriminate against you in recruitment, promotion, access to benefits, selection for redundancy, vocational training, dismissal and all other workplace activities. The EQA protects you by;

  • Providing a list of characteristics that it will protect (the protected characteristics).
  • Describing the different types of conduct and behaviour which your employer must not do (prohibited conduct)
  • Providing a list of the specific types of activity in the employment relationship that are protected.
  • Providing remedies and compensation if your employer is in breach of its provisions.

In order to have a claim in the Employment Tribunal, you will need to prove that you have the particular protected characteristic, your employer has discriminated against you at work because of your protected characteristic, and that you suffered (or could suffer) detriment and loss because of what your employer has done or allowed to happen. You don’t need two years’ service to take your discrimination case to the employment tribunal.

What is my employer NOT supposed to do under the Equality Act 2010?

There are four types of discrimination under EQA 2010. These are direct discrimination, indirect discrimination, harassment and victimisation. In addition, Trans people’s absences from work when they are transitioning, should not be treated differently to any other authorised absences in the workplace. Any behaviour of your employer that falls under these headings is called “prohibited conduct”.  Your employer must not carry out any prohibited conduct, allow your colleagues, agents or contractors to carry out the prohibited conduct.

An employer who carries out any prohibited conduct will be liable under the Equality Act. Part 8 EQA 2010 provides broad headings of the prohibited conduct that your employer must not carry out. Different prohibited behaviours fall under these headings and are addressed in the cases that come before the courts. You don’t need qualifying service to pursue a claim for discrimination in the Employment Tribunal. You have these rights at the point of recruitment, before you have even started the job.

 

Giving instructions to discriminate

Section 111 makes it unlawful to instruct, cause or induce another person to discriminate, harass or victimise a third person. The section provides a remedy for the person who receives the instruction and the intended target of the prohibited instruction whether or not the instruction is carried out, provided the recipient or intended victim suffers detriment as a result of the instruction. In Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1999]. When she started work as a receptionist, Van & Truck Rentals told her “We do have a special policy regarding coloured and Asians. We have got to be careful who we hire the vehicles to. If you get a telephone call from any coloured or Asians you can usually tell them by the sound of their voice. You have to tell them that there are no vehicles available”. As a result of this instruction Mrs Sargent resigned from her job. The Tribunal found that in the course of her employment Mrs Sargent was asked to carry out a policy which involved unlawful discrimination against blacks and Asians. As a result of this she felt unable to continue with the work and resigned. This was a constructive unfair dismissal, and because of the discrimination she did not need service to claim in the Employment Tribunal. The Court of Appeal upheld her claim of race discrimination, stating that she had been less favourably treated than a person willing to carry out the discriminatory policy and that she had been put in an intolerable position as a result. Section 112 makes it unlawful to knowingly help someone to discriminate against, harass or victimise another person.  In certain situations liability for this kind of behaviour can extend beyond the end of the employment relationship.

Who are the people who should not discriminate against me at work?

Your employer

Sections 3940 and 83(4) make your employer liable for prohibited conduct before, during and after employment. Before employment, employers must not discriminate against or victimise job applicants in the arrangements they make for deciding who should be offered employment, the terms on which they offer employment, or by not offering employment because of an applicant’s Trans status. During employment, your employer should not discriminate against or victimise you as to the terms of your employment, in the way they make access to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service, by dismissing you or subjecting you to any other detriment. A detriment is anything which might cause you to change your position for the worse or put you at a disadvantage, for example, being denied training or promotion. Section 108 applies the prohibition After your employment has ended.  The EHRC Guide for employers – “What equality law means for you as an Employer: dismissal, redundancy, retirement and after a worker has left” provides detailed guidance on your employer’s responsibilities.

 

Your colleagues

Your employer is also liable for prohibited conduct by your colleagues in the course of their employment, whether or not your employer knew or approved of it. Section 109 EQA 2010 states that anything done by an employee in the course of employment must be treated as also done by the employer. This is called “vicarious liability“.  Section 110 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of his or her employment. Section 109(4) says that the only defence an employer has is if they are able to prove that they took all reasonable steps to stop that particular conduct or other behaviours like it from happening. The words “in the course of employment” means things that your colleagues do whilst they are doing their job. Paragraph 10.46, Employment Code of Practice.”The phrase ‘in the course of employment’ has a wide meaning: it includes acts in the workplace and may also extend to circumstances outside such as work-related social functions or business trips abroad. For example, an employer could be liable for an act of discrimination which took place during a social event organised by the employer, such as an after-work drinks party.”
The Court of Appeal described the phrase in the case of Jones v Tower Boot Company Limited [1997],  and said that it should be interpreted in the broad sense in which it is employed in everyday speech. It covers prohibited conduct which happens outside work as long as there is a direct link to work for example during a work trip, or party.  The application of the phrase would be a matter of fact for the Employment Tribunal to decide.

This means that you can sue your colleagues AS WELL As your employer for discrimination, and your colleague will have to pay you compensation if found liable by the Employment Tribunal.  In Miles v J. Gilbank [2006],  Ms Miles personally had to pay Ms Gilbank £25,000 for vicious and inhumane acts which were sustained and personally encouraged by Ms Miles who was the manager.

 

Your employer’s agents

Section 109 makes your employer liable for the prohibited conduct of its agents while acting under your employer’s authority. Agents include recruitment agencies and occupational health services. It makes no difference whether your employer knew about the behaviour or approved of it. In Taiwo Lana v Positive Action Training in Housing Ltd (PATH) [2001], PATH placed Ms Lana with Walker Management as a trainee quantity surveyor. She was expected to be a trainee from 1 October 1998 until 30 September 1999. The placement was effected by two contracts. The first contract was between Ms Lana and PATH, the second between PATH and Walker Management. When Walker Management found out that Ms Lana was pregnant they terminated her contract. PATH then terminated its training contract with Ms Lana because they said they did not have any work for her. The Employment Appeal Tribunal (EAT) said that PATH was liable because they had agreed to provide Taiwo with work experience, and contracted with Walker Management (which was their agent) to provide her with the work experience placement.

 

Third Parties

Your employer can also be held liable for the actions of a third party who is not an employee, if your employer does not intervene or stop the behaviour because you are LGBT. In the case of Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003]  the House of Lords said that an employer will not be liable for in such a situation unless the reason for the employer’s failure to take action is related to the employee’s protected characteristics, or the third party was acting as the employer’s agent.

 

Trustees and managers of occupational pension schemes

Discrimination, harassment and victimisation because of sexual orientation by trustees and managers of occupational pension schemes are also prohibited by section 61.

 

Discrimination in other work relationships

The EQA 2010 also covers work situations where your employer is different from the company or organisation that you actually work for. This company or organisation is called the “principal”. Section 41(5) describes the principal as a person who makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). An individual who works under such an arrangement is called a “contract worker”. Section 41(7) describes a contract worker as a person who is supplied to the principal and is employed by another person who is not the principal. The worker must work wholly or partly for the principal, even if they also work for their employer, but they do not need to be under the managerial power or control of the principal. An example of such a situation is where you are supplied by an employment agency. The employment agency is legally your employer and sends you out to work for another company (the principal). Contract workers also include employees who are seconded to work for another company.

Section 41 protects contract workers in the same way as employees are protected against discrimination, harassment and victimisation.  The principal (the end-user) and your legal employer both have obligations not to carry out any prohibited conduct.   It is unlawful for a principal to discriminate against or victimise a contract worker;

  • in the terms on which the principal allows the contract worker to work;
  • by not allowing the contract worker to do or continue to do the work;
  • in the way the principal affords the contract worker access to benefits in relation to contract work, or by failing to afford the contract worker access to such benefits; or
  • by subjecting the contract worker to any other detriment.

Others

There are special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

  • Partnerships or proposed partnerships – Section 44
  • Limited Liability Partnerships (LLP’s) or proposed LLP’s  – Section 45
  • Barristers – Section 47
  • Employment-service providers  – Section 55 

Direct discrimination

Section 13 says that direct discrimination is where your employer treats you less favourably than they treat others at work because;

  • you are LGBT
  • someone thinks you are LGBT. This is known as discrimination by perception.
  • you are connected to an LGBT person, or someone wrongly thought to be LGBT. This is known as discrimination by association.

Less favourable treatment means you have been treated differently to someone else who isn’t LGBT and you’re worse off because of it.  Section 24 says that it is irrelevant who the person discriminating against you is, so a person cannot say that they could not possibly have discriminated against you because they are also LGBT. Being treated unreasonably on its own will not amount to direct discrimination. If your employer is able to show that they would have treated all workers just as badly, then there will have been no less favourable treatment and so, no direct discrimination.

The comparator

To get around this, you need to compare yourself with an actual or hypothetical person in the same situation as you, but who does not have your protected characteristic (the comparator). This is how you show that you have been treated less favourably than everyone else. If there is no one to compare yourself to in the workplace, you can ask the employment tribunal to compare you to a hypothetical comparator.

Your employers defence for direct discrimination

Once you have proved direct discrimination, your employer will have no defence to it.  This was confirmed by the House of Lords in Watt (formally Carter) v Ahsan [2007]. 

 

Indirect discrimination

Section 19 defines indirect discrimination as being where an apparently neutral policy, rule, practice or guideline is applied generally but particularly disadvantages LGBT people. This policy, rule, practice or guideline is called “provision, criterion or practice” (PCP) in the Act.

The pool for comparison

The PCP applies to a certain group of people in the same way no matter who they are. Within this group, some people with a particular protected characteristic may be put at a particular disadvantage by the PCP.  The Employment statutory code of practice says that; “….. the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively.” 

Your employers defence for indirect discrimination

Your employer can defend indirect discrimination if they are able to prove that the PCP is a “proportionate means of achieving a legitimate aim”. The courts carry out a balancing exercise between the employer’s need to use the PCP and the discrimination caused by the PCP. The Employment statutory code of practice says that the PCP should be legal, not discriminatory in itself and must represent a real, objective consideration to be regarded as a legitimate aim.

 

Absence from work

Under section 16, it is unlawful to treat you less favourably if you are absent from work because of gender re-assignment.  The Equality Act 2010 explanatory notes says that it is unlawful for an employer to discriminate against a female to male transsexual person who takes time off work to receive hormone treatment as part of his gender reassignment. This would apply to any absence that you take because of your gender re-assignment procedures. Chapter 17.27 of the Employment statutory code of practice says that employers should not discriminate because of gender re-assignment when taking performance management action against an employee.

 

Harassment

There are three types of harassment defined in section 26(1). It prohibits harassment related to your protected characteristic of sexual orientation, sexual harassment, and less favourable treatment because you submit to or reject sexual harassment or harassment related to sex or sexual orientation.The specific kind of prohibited conduct is behaviour that violates your dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for you at work. Unwanted conduct includes “…. spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour”. – Employment Statutory Code of practice 

Harassment may occur over a period of time through a series of relatively minor incidents of harassment or it may occur through one blatant incident. In either case you will have to show that your working environment has been affected in such a way and to such a degree as to violate your dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for you.  Under the Protection from Harassment Act 1997, your employer may be vicariously liable for a course of conduct by your colleagues that amounts to harassment under the Act.  Section 40 makes it unlawful for an employer to harass an employee or an applicant for employment, and section 41 makes it unlawful for a principal to harass a contract worker.

 

Victimisation

Section 27 makes it unlawful for your employer to punish you because you have complained about discrimination. Victimisation is defined as subjecting you to a detriment because your employer believes that you have done or may do a “protected act”. Protected acts are;

  • bringing proceedings under the Equality Act 2010 – s27(2)(a)
  • giving evidence or information in connection with proceedings under the Act- s27 (2)(b)
  • doing any other thing for the purposes of or in connection with the Act – s27(2)(c)
  • making an allegation (whether or not express) that your employer or another person has contravened the Act – s27(2)(d)
  • seeking or making a relevant pay disclosure, or obtaining information in a relevant pay disclosure – s77(4) 

Section 77 says that no matter what your contract says, you can talk about pay with anyone if you want to find out whether there is a connection between your pay and having(or not having) a protected characteristic. These discussions are called “relevant pay disclosures”, and you should not be discriminated against because of it.  Unlike direct discrimination, there is no comparator in victimisation. You just need to show that you were victimised because of a reason listed above.

 

My employer is a public authority. Do they have extra responsibilities?

Section 149, is the public sector equality duty. It says that public authorities should have due regard to the need to eliminate discrimination, harassment and victimisation against LGBT people, to advance equality of opportunity and foster good relations between LGBT people and others.

 

Situations where your  employer CAN lawfully discriminate against you – Occupational requirements

Schedule 9 paragraph 1 allows discrimination in recruitment, opportunities for promotion, transfer or training, or dismissal where there is a an occupational requirement for the job not to be done by a LGBT person. Also, if an employer can show that a particular protected characteristic is central to a particular job, then the employer can insist that only someone who has that particular protected characteristic is suitable for the job. Your employer can only do this if its a proportionate means of achieving a legitimate aim, and there is evidence that you are a LGBT person, or your employer has reasonable grounds to believe that you are a LGBT person.

Chapter 13 (page 174) of the Employment Statutory Code of Practice says that any exception should be interpreted restrictively, and gives examples of when and how the exception can be applied.  Where an exception allows discrimination in relation to one protected characteristic, employers must ensure that they do not discriminate in relation to other protected characteristics.

 

Organised Religion

Schedule 9 paragraph 2 allows an occupational requirement where employment or appointment to a personal or public office is for organised religion. The employer will need to prove that;

  • the employment is for the purposes of an organised religion;
  • the application of the requirement engages the compliance or non-conflict principle; and
  • the person to whom the employer applies the requirement does not meet it, or the employer has reasonable grounds for not being satisfied that the person meets it

Religion or belief

Schedule 9 paragraph 3 allows an occupational requirement where the employer has an ethos based on religion or belief and the employer can prove that;

  • the requirement of having a particular religion or belief is an occupational requirement;
  • the application of the requirement is a proportionate means of achieving a legitimate aim; and
  • the person does not meet the requirement, or the employer has reasonable grounds for not being satisfied that the person meets the requirement

Armed forces

Schedule 9 paragraph 4 allows the armed forces to refuse a woman or a LGBT person employment or access to opportunities for promotion, transfer or training if this is a proportionate way of ensuring the combat effectiveness of the armed forces. This exception does not extend to dismissal or any other detriment.

 

National security

Section 192 allows discrimination where the purpose is to safeguard national security if the acts are proportionate for that purpose.

 

Insurance 

Schedule 9 paragraph 20 allows employers to treat LGBT people differently in relation to an annuity, life insurance policy, accident insurance policy or similar matter involving the assessment of risk if the different treatment is done by reference to reliable actuarial or other data and the treatment is is reasonable in all the circumstances.

Benefits dependent on marital status

The Act states that an employer can still provide certain benefits that are restricted to opposite-sex married employees or same-sex couples in a civil partnership. So, for example, employers can refuse survivor benefits in their occupational pension scheme to opposite-sex unmarried couples and same-sex couples who are not in a civil partnership. This exemption applies only where the right to the benefit accrued before 5 December 2005 and on married people and civil partners only after that date.

 

Communal accommodation

The Employment statutory Code of Practice describes communal accommodation as ” ……..residential accommodation which includes dormitories or other shared sleeping accommodation which, for reasons of privacy, should be used only by persons of the same sex. It can also include shared sleeping accommodation for men and for women, ordinary sleeping accommodation and residential accommodation, all or part of which should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.”

Schedule 23 paragraph 3 allows an employer to exclude LGBT people from this accommodation only if the exclusion is a proportionate means of achieving a legitimate aim. The employer must make arrangements for alternative accommodation or provide compensation for the refusal of the accommodation. The Equality Act 2010 explanatory notes suggest that such compensation may involve compensating a woman who is unable to attend a residential training course on a worksite with men-only accommodation by sending her on another course or arranging alternative accommodation. The same principle would apply in relation to a LGBT person.

 

Security and vetting
Certain jobs require security vetting, for example a Disclosure and Barring Service check (DBS). There is a confidential DBS process specifically for Trans applicants. You should contact the DBS sensitive applications line on 0151 676 1452 or email sensitive@dbs.gsi.gov.uk for information and advice about completing the form.

 

 

Best of the web

Stonewall – Role models; being yourself: Sexual orientation and the workplace

Top 100 Employers

Sexual Orientation: The Equality Act made simple 

ACAS – Sexual orientation and the Workplace

Management handling of sexual orientation, religion and belief in the workplace (Research paper)

Equality & Human Rights Commission – Sexual Orientation Discrimination

– Employment Statutory Code of Practice

Citizens Advice – Discrimination because of sexual orientation

– Your right to respect for private and family life

GOV.UK – Applying for a gender recognition certificate

Equality Act 2010 Explanatory Notes

Government Equalities Office – The recruitment and retention of transgender staff: Guidance for employers

 

 

Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

 

Case Study

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