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Winrow Solicitors, North and Mid Wales
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Sexual Orientation Discrimination

The Equality Act 2010 legislates for unlawful discrimination in the workplace on the grounds of sexual orientation.

How is ‘sexual orientation’ defined under the Act?

‘Sexual orientation’ covers gay, heterosexual, bisexual and lesbian people.

Sexual orientation discrimination occurs when:

Sexual orientation discrimination occurs in the workplace when you are treated less favourably because of your sexual orientation, your perceived orientation or the orientation of someone with whom you associate, and can arise in any of four ways:

Direct discrimination

Indirect discrimination

Harassment

Victimisation

Such discrimination can apply at interview stage, in the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed or subjected to any other detriment. Therefore, the law is designed to protect employees and workers of any orientation during all aspects of employment. Moreover, you do not need to be employed for a particular period of time in order to bring a claim.

Direct Discrimination

Direct discrimination occurs when your employer treats or would treat you less favourably because of your sexual orientation than they would someone not of your sexual orientation.

An example of this could be if your employer gives a an heterosexual colleague promotion rather than a gay employee, even though they may have less experience and qualifications.

You would need to look at how your employer treats one employee of a particular orientation as compared to another. Another example of direct discrimination might be where a lesbian is refused a promotion. Other examples might include the harassment of someone because he has a gay son or refusing to employee a woman because she is wrongly believed to be bisexual.

The defence of justification is not available for direct discrimination.

Unfortunately, it is all too often the case that it is a women the suffers such unfair treatment, so if you feel this has happened to you call us today for a free consultation on 01286 87277, 01286 269226 or 07594461181.

Indirect Discrimination

This is the application of a rule or practice that, on the face of it, applies equally to persons who are not of the same sexual orientation but which particularly disadvantages those of a certain sexual orientation. An example of indirect discrimination might be where an employer only places an advert in magazines/newspapers aimed at gays and/or lesbians because heterosexual people don’t tend to read these publications.

Harassment

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. Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect.

Therefore, the definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.

Harassment doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Examples of this might include the telling and tolerating of homophobic jokes around the office and the use of derogatory homophobic terms.

Additionally, the Equality Act has deemed that the employer is potentially liable for the harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.

Victimisation

This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of race discrimination under the Act. There is no longer a need to compare your treatment to an employee who has not done one of the above.

Who is liable under the Act?

Liability for sexual orientation discrimination usually lies with the employer and/or any other employee who is found to have discriminated.

Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability. As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.

Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the employee as well as the employer.

Employers have a defence to a complaint of discrimination based on vicarious liability and third party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, in the case of vicarious liability, the claim can continue against the individual employee.

Exceptions under the Act

Overseas employment

The Act applies only to establishments in Great Britain.

Genuine Occupational Qualification (GOQ) or Genuine Occupational Requirements (GOR)

The Act provides for specific situations in which discrimination in the employment field is allowed. Under this an employer must simply show that the requirement to discriminate is a ‘proportionate means of achieving a legitimate aim’. Examples of this might be where the customers are predominantly of one sexual orientation or the job requires an understanding of a particular sexual orientation, for example a gay man’s sexual health worker.

Positive Action

Positive action is a voluntary measure which enables employers to provide support or encouragement to persons within a particular group if, during the last 12 months, that group has been disproportionately represented in that area of work. Employers could encourage this group to apply for jobs and even provide special training.

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