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Sexual Orientation Discrimination

Key points

Under the Equality Act 2010 it is unlawful to discriminate against workers because of sexual orientation. Sexual orientation is defined as:

  • orientation towards people of the same sex (lesbians and gay men)
  • orientation towards people of the opposite sex (heterosexual)
  • orientation towards people of the same sex and the opposite sex (bisexual).

The Act applies to goods and services, all employment and vocational training and includes recruitment, terms and conditions, promotions, transfers, dismissals and training. The Act makes it unlawful on the grounds of sexual orientation to:

  • discriminate directly against anyone and to treat them less favourably than others because of their actual or perceived sexual orientation; for example not promoting a employee purely on the basis that they are gay.
  • discriminate indirectly - to apply a criterion, provision or practice which disadvantages people of a particular sexual orientation, unless it can be objectively justified; for example a occupational requirement and crucial to the post. An example of this could be a particular policy for maternity / paternity leave does not apply to same sex couples.
  • subject someone to harassment - harassment is unwanted conduct that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
  • victimise someone because they have made or intend to make a compliant or allegation in relation to a complaint of discrimination on the grounds of sexual orientation.

It is as unlawful to discriminate against heterosexual people as it is to discriminate against lesbians, gay men and bisexual people.

Employers should ensure that sexual orientation is included in their Equality Policy and have policies in place which are designed to prevent discrimination in:

  • recruitment and selection
  • determining pay
  • training and development
  • selection for promotion
  • discipline and grievances
  • countering bullying and harassment.

If a worker is harassed by their colleagues or manager because of an inaccurate suspicion or speculation about their sexual orientation they may have grounds to complain to an employment tribunal if their employer fails to deal with the matter in a timely and proper manner. This type of harassment is known as discrimination by perception, because of the perceived sexual orientation of the person.

In some circumstances it may be lawful to specify that job applicants must have a particular protected characteristic under the Equality Act 2010, for example an organisation which provides counselling services for gay men may be able to show that there is an occupational requirement for counsellors to be gay.

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Acas Helpline

Call our Helpline on 0300 123 1100 for free support and advice or to check your workplace policies and practices. The Acas Helpline provides free and impartial advice for employers, employees and representatives on a range of employment relations, employment rights, HR and management issues.

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