The Equality Act 2010 sets out the protection from discrimination of individuals on the basis of their sexual orientation. It is important to remember that for the purposes of this Act, ‘sexual orientation’ means:
• orientation towards people of the opposite sex;
• orientation towards people of the same sex;
• orientation towards people of both the opposite and same sex.
Protection, therefore, does not only apply to homosexuals and bisexuals, but it is also possible for a heterosexual person to claim that they have been discriminated against because they are not homosexual or bisexual.
It is unlawful to discriminate against someone on these grounds either directly or indirectly, to subject them to harassment or to victimise them because of their sexual orientation.
It would be direct discrimination to refuse to employ an individual purely because they are gay, or to deny them promotion, or to dismiss them. That all seems quite logical, but recent developments have confirmed that direct discrimination can also be manifested in other far reaching circumstances. Sexual orientation protection covers a wide scope of situations and employers should be aware that the legislation applies where it might not be obviously apparent.
It need not necessarily be the complainant’s own sexual orientation that is causing the behaviour about which they are complaining. Direct discrimination can include circumstances when a person is discriminated against because a family member of theirs is gay, because he has a number of gay friends, or even just because he is heterosexual but enjoys going to gay clubs. This is termed ‘associative discrimination’ and establishes protection for individuals because they are ‘associated’ with a particular sexual orientation although they do not possess the particular characteristic themselves. To refuse promotion for, or to dismiss an employee because, for example, their son is gay, entitles that person to claim at tribunal that they have been discriminated against.
Similarly, protection also extends to an individual on the basis of their ‘perceived’ sexual orientation. This is distinguishable from associative discrimination because it is the individual’s own sexual orientation that is at the centre of the treatment. However, perceived discrimination is based on thoughts that the individual is, for example, a lesbian, but they are in fact heterosexual. If an individual was denied the opportunity to undertake some training, for example, because her manager thought she was a lesbian when in fact she is not, she would be entitled to make a claim at tribunal of discrimination.
The umbrella of sexual orientation protection has also been cast so widely as to cover the circumstance where an individual is not gay, his colleagues know that he is not gay and the individual is aware of that fact, but the colleagues subjected the individual to homophobic abuse on the basis of his boarding school background and that fact that he lived in Brighton. Although the courts found this to be a very narrow and rare situation, they found that this person was protected and had been subjected to harassment on the grounds of sexual orientation.
A further example of the wide ambit of the Equality Act 2010 is that employees are able to claim harassment even though the particular behaviour is not directed at them. For example, Employee A shares an office with Employee B. Employee A is gay and is frequently teased and humiliated by his manager about his homosexuality. Employee B is entitled to claim harassment even though he is not gay and the teasing was not aimed at him, because the manager’s behaviour has also created an offensive environment for him.
Discrimination legislation can be complicated and detailed. If you have any queries about how it may be affecting your business, or if you receive a grievance from an employee claiming he has been discriminated against, call the 24 Hour Advice Service on 0844 892 2772, or 0844 892 2786 if you are one of our Northern Irish clients.