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:
Landau
Zeffertt Weir Solicitors