Same-sex couples are able to get married or register a civil partnership in England, Scotland and Wales, which gives them many of the same rights as heterosexual couples. Now that the US has also recognised same-sex marriage as legal in Obergefell v Hodges, the issue of sexual orientation is likely to move into the spotlight of ensuring equality under employment law.
Recognising what protections UK employment law offers gay and lesbian people, and what conduct may be identified as discriminatory can be good practice for all employers as they look to promote an equal and productive work environment.
Legal Protections for Same-Sex Couples
Prior to the Human Rights Act 1998 coming into force in 2000, the Sex Discrimination Act 1975 did not cover discrimination on grounds of sexual orientation, meaning that it was not unlawful to discriminate on this ground in the workplace. For example, it was standard practice to restrict gay and lesbian people from enrolling in the armed forces.
Developments in relation to anti-discrimination laws gained traction, resulting in the creation and implementation of the Employment Equality (Sexual Orientation) Regulations 2003. These Regulations came into effect in December 2003 and have since been incorporated in the provisions of the Equality Act 2010, which expressly protect employees from being discriminated against in the workplace on the ground of sexual orientation.
The Equality Act 2010 therefore extends not only to same-sex couples that have made a legal commitment by entering into a civil partnership or marriage; discriminatory treatment is prohibited under the Act if it has occurred because of sexual orientation. This includes orientation towards someone of the same sex (lesbians or gay men), opposite sex (heterosexuals) or both sexes (bisexuals).
Extent of Workplace Discrimination
Despite the general perception that the UK is a forward-thinking and tolerant country, Stonewall, an organisation aimed at furthering the rights of gay, lesbian, bisexual and transgender people, conducted research into the extent of workplace discrimination and found the following:
- Almost 350,000 employees in Britain (nearly one in five) have experienced bullying from their colleagues because of their sexual orientation.
- 13 per cent of the national workforce had witnessed verbal homophobic bullying, and 4 per cent had witnessed physical homophobic bullying, in the workplace.
- Gay women often see their gender as more of a barrier at work than their sexual orientation, so they often decide to hide their sexual orientation if possible.
Research also found that those who can be “out” at work and in a safe environment are more productive than their homosexual colleagues who have to hide their sexual orientation and/or work in a less inclusive environment.
The Legal Protections
The Equality Act 2010 guarantees protections to homosexual employees from discrimination and seeks to ensure employers practice equality in the workplace, which in turn should help staff be happier and more productive in their working life.
Under the Equality Act 2010, sexual orientation is one of the nine ‘protected characteristics’. Discrimination because of sexual orientation may take a number of forms, including:
- Direct discrimination - when someone is treated less favourably than another person specifically because of their sexual orientation.
- Indirect discrimination - where the effect of an employer’s rule, policy or a practice could disadvantage people because of their sexual orientation. It is possible to justify indirect discrimination, but only if the practice is necessary for the way the business operates, the employer can demonstrate that they have examined less discriminatory alternatives and there is no other viable way of achieving the same outcome.
- Victimisation – where someone suffers detrimental treatment because they have or intend to exercise a right relating to their sexual orientation, such as if an employer initiates a disciplinary sanction against a homosexual person.
- Harassment – covers a variety of different forms of discrimination, from telling offensive jokes to ignoring a homosexual person for a promotion due to their sexual orientation.
It should also be noted that same-sex couples who register as civil partners have the right to equal treatment with married couples in a wide range of matters. For example, if an employer guarantees benefits to married employees of the opposite sex, such as survivor pensions, flexible working or health insurance, then these must also be provided to same-sex couples.
It is also worth remembering that an employer can be vicariously liable for discriminatory acts committed by an employee against a colleague. As such, ensuring your workforce understands what type of conduct is and is not acceptable in the workplace is important to ensure that no one individual’s actions or behaviour towards a colleague creates the risk of a discrimination claim.
Finally, it should also be noted that the Act provides that both direct discrimination and harassment can occur by means of association and perception. This means that less favourable treatment of anybody because of sexual orientation, even if that treatment is based on an incorrect belief (i.e. a heterosexual employee is thought to be homosexual), will amount to sexual orientation harassment.
Conclusion
Protection against sexual orientation discrimination under the terms of the Equality Act extends to all private, public and voluntary sector organisations, to ensure that employers throughout Britain provide an equal environment for all staff, no matter their sexual orientation. Indeed, studies have demonstrated that a strong commitment to promoting these regulations reduce the chance of a business being the subject of a sexual orientation discrimination claim and ensure their staff are happier and more productive in their working life. Discrimination, in whatever form, can arise in a number of ways and it is important for employers to ensure that they and their employees are aware of the regulations and that a clear workplace policy is communicated to promote equality.
What Do I Need to Know?
- Discrimination because of sexual orientation is prohibited under the Equality Act 2010.
- Discrimination may take a number of forms: direct; indirect; harassment and victimisation. Only indirect discrimination may be justified if it meets a number of qualifications.
- A clear workplace policy on what behaviour constitutes sexual orientation discrimination should be communicated within the workplace. ACAS guidelines are available to help in designing this policy with insightful input from the Stonewall charity. Alternatively, one of our employment law specialists would be happy to assist your organisation in ensuring that provisions are in place to guard against a discrimination claim being raised against your business.
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