Same-sex and the workplace

Same-sex and the workplace

Published:

Author: Michael Briggs

Applies to: England, Wales and Scotland

Same-sex marriage has now been declared legal across the US. In turn, does that translate into employers and employees being more accepting of one another regardless of sexual orientation?

AVOIDING SEXUAL ORIENTATION DISCRIMINATION CHECKLIST

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Sexual orientation is recognised as a ground of discrimination and employers should be well-accustomed to having a diverse workforce.

Download our best practice guide for employers to ensure that you do not fall foul of the provisions of the Equality Act 2010 concerning sexual orientation discrimination in the workplace.

Background

The US has now caught up with the United Kingdom and many other countries across the globe by declaring same-sex marriage legal following the Supreme Court ruling in the case of Obergefell v Hodges. Certain States of the US have however raised various protests in response, claiming that marriage can only be between one man and one woman.

Leaving aside the issue of matrimony and turning to the workplace, times have moved on greatly in recent years. There is now equal employment protection for gay and lesbian people in the workplace; a very different story from 15 years ago. It was not until the Human Rights Act 1998 came into force in 2000 that employment protection for gay and lesbian people really started to develop.

Prior to that, and from an employment perspective, the European Court of Justice in Grant v South West Trains LtdΒΈ and the Court of Appeal in Smith v Gardner Merchant, had held that the Sex Discrimination Act 1975 did not cover discrimination on grounds of sexual orientation, meaning that sexual orientation was a justifiable ground for discrimination in the workplace. At that time the United Kingdom also had a policy of excluding gay and lesbian people from the armed forces.

Case law, subsequent developments in public policy and the then Government's consultation in relation to new anti-discrimination laws were instrumental 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 These Regulations came into effect in December 2003 and have since been replaced by the provisions of the Equality Act 2010 ("the Act"), which consolidated all the many pieces of discrimination law within England and Wales, and came into force in October 2010.

Despite such improvements in protection from discrimination because of sexual orientation, Stonewall has published the following statistics regarding equality in the workplace:

  • one in five lesbian and gay people have experienced bullying from their colleagues because of their sexual orientation;
  • almost four million people have witnessed verbal homophobic bullying in the workplace; and
  • over one million people have witnessed homophobic bullying at work.

Further, statistics suggest that despite the above taking place, the number of claims of sexual orientation discrimination brought within the Employment Tribunal is low. In the year 2013/14, only 99 claims were brought against employers alleging sexual orientation discrimination, and only 3 of those were successful at a final hearing.

Protection under Act

Sexual orientation is one of the nine 'protected characteristics' covered by the Act. This is the main piece of legislation which protects gay and lesbian people within the field of employment, occupation and vocational training. As with the other areas of protection under the Act, job applicants and those 'in employment' (i.e. those who work under a contract of employment or apprenticeship, or a contract to do work personally), are protected from:

  • Direct sexual orientation discrimination; which means, for example, that a gay job applicant should not be treated less favourably than others because of his sexual orientation.
  • indirect sexual orientation discrimination; which means that an employer cannot apply to a gay or lesbian person a provision, criteria or practice ('PCP') which when applied to all employees, puts or would put that gay or lesbian employee and other persons of their sexual orientation at a particular disadvantage when compared to others not of the same sexual orientation, unless the employer can objectively justify their PCP.
  • harassment; which, means, for example, that a lesbian cannot be ignored for a promotion opportunity because of her sexual orientation, or the telling of jokes that are offensive about gay or lesbian people.
  • victimisation; which means that an employer cannot subject a gay man to detrimental treatment, i.e. a disciplinary sanction, because he has made or intends to make a sexual orientation discrimination complaint under the Act.

The Act also provides that both direct discrimination and harassment can occur by means of association and perception. In the case of English v Thomas Sanderson Ltd, a heterosexual male employee claimed that he had been treated less favourably because he was thought to be gay, by reason of him going to a boarding school and him living in Brighton. Also, in that case, it was held that repeated name calling (using the term 'faggot') could amount to sexual orientation harassment even though Mr English was known not to be gay.

Summary

Overall, sexual orientation is now clearly recognised as an impermissible ground of discrimination and employers, in the 21st century, should be well-accustomed to having a diverse workforce.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Michael Briggs

Senior Associate

0370 086 5066

Michael is an experienced employment lawyer who provides practical, commercial and results-driven advice to a wide range of clients in respect of disciplinary matters, redundancy & reorganisation, absence and performance issues, employment contracts & handbooks and executive appointment & exits. Michael also defends employment tribunal claims.

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