Notice: The Equality Act 2010 came into force on 1st October 2010 and this page will shortly be updated. In general, the principles below are still maintained and in some cases are enhanced.
It is unlawful to discriminate in employment on the grounds of sexual orientation. There are limited exceptions where discrimination is allowed but these are uncommon. Discrimination can take several forms:
Direct discrimination is perhaps the most common type, which means treating people less favourably than others on grounds of sexual orientation. This would normally be blatant. You would need to look at how an employer treats one employee of a particular orientation as compared to another. There is generally no defence available to an employer for direct discrimination.
Indirect discrimination which means applying rule or practice which disadvantages people of a particular sexual orientation, unless it can be justified. Employers would as a defence have to show a real business need which is proportionate to what they want to achieve.
Harassment on grounds of sexual orientation. Harassment is defined as subjecting someone to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter if the harassment is intentional or unintentional.
Victimisation which means treating people less favourably because they made or intend to make allegations of discrimination on the grounds of sexual orientation.
Who does the law protect?
The law applies to all employees, including contract workers. They also apply to directors, the police, members of the armed forces, partnerships, employment agencies and agency staff. The law provides protection for everyone, not just lesbian, gay and bisexual workers. So, for example, if someone is discriminated against because she is thought to be a lesbian (but is not), she can still claim she has been discriminated against on grounds of sexual orientation.
Anyone harassed at work because they have gay friends or go to gay clubs can also claim they are being discriminated against on the grounds of sexual orientation.
The regulations apply at interview stage and to the terms and conditions of employment that are offered such as pay, promotions, transfers, dismissals and opportunities for training. They also offer protection after the person has left their job if the discrimination or harassment has something to do with the previous employment relationship, such as saying something detrimental in a reference.
Who is liable?
Employers are liable for the acts of their employees, whether or not they knew or approved of them. They are also liable for acts done by anyone else acting on their behalf or with their authority.
Employers are not likely to be liable, however, for acts by third parties, such as pupils in school who are harassing a teacher as there is no employment relationship between the school and pupil. Nonetheless, in these circumstances it may well be that the conduct of the school, in not addressing the conduct of the pupils, would give rise to a liability.
Defence by the employer
Employers have a defence to a claim to anything done by an employee if they can show that they took all 'reasonable steps' to prevent the behaviour from happening.
For instance, the employer may be able to show that he or she has a policy that deals with discrimination on the ground of sexual orientation, that the policy is being actively implemented, that staff receive regular training and possibly even that workers have been disciplined in the past for unacceptable behaviour.
How do you enforce your rights?
Although most issues should try to be resolved within your place of work, (such as by lodging an internal grievance procedure), this is not always possible. Nevertheless, there has to be good reason why you cannot lodge a grievance. The tribunal may well refuse to issue the claim unless a grievance has been lodged, either before or after you have left employment.
If an employee wanted to pursue a claim to an employment tribunal, this should be submitted within three months of the date of termination of employment, or within 3 months of the last date of discrimination. It is preferable to seek professional advice at this time. Many cases are capable of early resolution by negotiation.
Other aspects of UK employment law for employees include:
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