Key Points an Employer Needs to Know About Sexual Orientation Discrimination in England

As an employer, you cannot carry out sexual orientation discrimination in the workplace. The Equality Act states that during employment, discrimination is unlawful where it is on the grounds of one of the nine protected characteristics. One of these is sexual orientation, which can be termed sexuality. Hence, you must take reasonable steps to prevent those in your employment from being subject to workplace discrimination. You could face a claim at an employment tribunal for violating your employee’s rights if discrimination occurs. Therefore, you must understand workplace discrimination. This article will explain critical points for you, as an employer, about sexual orientation discrimination in England. 

What is Sexual Orientation Discrimination?

Sexual orientation discrimination is where you discriminate against another person based on sexual orientation. This means you treat the person less favourably than another due to sexual orientation. This is illegal in all aspects of employment, such as during:

• recruitment;
• promotion;
• work opportunities;
• training; 
• pay;
• pensions;
• work terms and conditions; and
• dismissal or redundancy.

Discriminating against another person based on sexual orientation means that you cannot discriminate because they are:

• homosexual;
• heterosexual; or
• bisexual. 

How Can Discrimination Arise?

There are three ways sexual orientation is illegal in England. Hence, you must avoid these forms of discrimination as an employer.

Direct Discrimination

Direct discrimination is where you treat a person less favourably than another due to sexual orientation. Discrimination can occur be:

• associative, which is where you treat a person less favourably based on the sexual orientation of a person they are associated with; or
• perceptive, which is when you think a person has a specific sexual orientation and discriminate against them because of this.

Victimisation

Sexual orientation victimisation is where you treat a person less favourably because they have, or you think they have, either:

• made a complaint about sex discrimination; or
• helped someone who has made one, such as giving evidence for them in court. 

Harassment 

Harassment on the grounds of sexual orientation is when someone receives unwanted conduct on this basis which either:

• violates their dignity; or
• creates an offensive, degrading, humiliating, intimidating or hostile environment.

Abuse based on a person’s sexual orientation is also unlawful, and any violence or hostility may need to be reported to the police.

How Can an Employer Prevent Workplace Discrimination?

If you have good employment practices in place in your business, you can help prevent discrimination based on sexual orientation. Some key ways you can do this include:

• creating an inclusion and diversity policy where you clearly state that you do not tolerate this type of discrimination;
• communicating with staff so that they understand that they must not discriminate based on sexual orientation;
• ensuring your team knows to report instances of sexual orientation; and 
• providing training to staff to challenge cases of workplace discrimination.

You should also review your recruitment practices regularly to ensure that these practices do not discriminate against candidates based on sexual orientation.

Can an Employer Insist Staff Reveal Their Sexual Orientation?

You cannot require your staff or recruitment candidates to disclose their sexual orientation to you. However, as part of your equal opportunity policy, you may ask them about this during recruitment. However, you must ensure their responses are anonymous.

Key Takeaways

You must not discriminate during employment based on sexual orientation. In addition, you must protect staff at work from potential discrimination by taking all reasonable steps. Good practice policies can help prevent sexual orientation discrimination, such as having a diversity and equality policy and training your staff to understand and know when to report workplace discrimination. 

If you need help understanding workplace discrimination in England, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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