The Equality Act 2010 states that you must not be discriminated against because of your sexual orientation. The Act defines sexual orientation 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)
This means that sexual discrimination includes being treated less favourably because you are heterosexual, lesbian, gay or bisexual. Further, the act applies equally to all orientations.
The Act applies to goods and services, all employment and vocational training and includes recruitment, terms and conditions, promotions, transfers, dismissals and training.
There are four main types of sexual orientation discrimination:
This occurs when someone treats you less favourably than another person in a similar situation because of your sexual orientation. E.g. at a job interview, a woman makes a reference to her girlfriend. The employer decides not to offer her the job, even though she is the best candidate they have interviewed. Additionally, direct discrimination can happen when:
- Someone thinks you have a particular sexual orientation (this is known as discrimination by perception) or,
- Because you are connected to someone who has a particular sexual orientation (this is known as discrimination by association)
This occurs when an organisation has a policy, process or way of working that is applied the same to everyone but has the impact of disadvantaging people of a particular sexual orientation.
However, in limited circumstances, an organisation is permitted to have such a policy, process or way of working if they can show that there is a good reason for this (also known as an objective justification).
This is unwanted conduct related to a person’s sexual orientation has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Harassment can never be justified. However, if an organisation can show that it did everything it could to prevent such behaviour, then you will not be able to make a claim for harassment against it. You may still be able to make a claim against the harasser.
This occurs when you are treated badly for you have made a complaint, or you are supporting someone who has made a complaint, under the Equality Act related discrimination based on sexual orientation.
Circumstances when being treated differently due to sexual orientation is lawful
- There may be an occupational requirement where belonging to a particular sexual orientation is essential to the job. E.g. an employer wants to recruit an advice worker who has experience of coming out for a young person’s LGBT helpline. The employer can specify that applicants must be lesbian or gay.
- An organisation may take positive action to encourage or develop gay, lesbian or bisexual people to participate in a role or activity where they are underrepresented.
- The treatment falls within one of the exceptions under the Act that allows people to be treated differently based on sexual orientation.
- Where a religious or belief organisation is excluding persons of a particular sexual orientation from its activities, goods facilities and services. This only applies where the organisation’s purpose is not commercial, but is to practice, promote and teach that religion or belief. The restrictions imposed must be necessary either to comply with the doctrine of the organisation or to avoid conflict with the strongly held religious beliefs of its followers.
Information and Support
Equality Advisory Support Service
Acas’ Report on Sexual Orientation Discrimination in the Workplace