Pride Month: Sexual Orientation Discrimination in the Workplace

As part of our series of blogs commemorating Pride Month, this article considers sexual orientation discrimination from an employment law perspective.

Sexual Orientation and the Equality Act

The Equality Act 2010, is the piece of legislation in the United Kingdom that protects employees against discrimination.

Sexual orientation is a protected characteristic under equality legislation, and under s12(1) of the Equality Act sexual orientation is defined as a person’s sexual orientation towards:

• Persons of the same sex;
• Persons of the opposite; or
• Persons of either sex.

What is Discrimination?

Discrimination is the less favourable treatment of an individual or group of people due to a protected characteristic. Less favourable treatment is anything that puts someone with a protected characteristic at a disadvantage, in comparison to someone who does not have that characteristic, and there is no requirement for the less favourable treatment to be intended.

There are four types of discrimination:

• Direct discrimination– less favourable treatment directly due to a protected characteristic.
• Indirect discrimination– when the employer has a practice, criteria or provision that it applies to a group of employees but those with a protected characteristic are put at a disadvantage.
• Harassment– unwanted or offensive behaviour related to a protected characteristic.
• Victimisation– negative treatment as a result of making a discrimination or harassment complaint.

Recent case law

Mrs M Fleming v McGill Facilities Management Ltd

This is a recent case that focused on the issue of an employer allowing workplace ‘banter’ in relation to sexual orientation.

Following a question raised by Mrs Fleming, in relation to seating arrangements in a new office space, she felt so embarrassed by an unwanted sexual orientation comment made to her, that she removed herself from any communication in the office and began dreading going to work.

Mrs Fleming raised a grievance, resigned and claimed constructive dismissal and sexual orientation discrimination. She brought the claim to the Employment Tribunal even though she did not possess the particular protected characteristic that was concerned, however, the Tribunal found in her favour; that she had been constructively dismissed and suffered unlawful harassment. The Employer was ordered to a pay £15,460 in compensation, including an award amounting to nearly £2,000 for injury to feelings.

Still work to be done?

Employer attitudes as well as wider attitudes towards tackling sexual orientation discrimination have significantly improved and evolved over the years. However, there is still significant work to be done. DeltaNet International, having analysed data from the Ministry of Justice, found that sexual orientation discrimination cases had risen by 165 percent over five years (in 2019-2020), and the median award given by an Employment Tribunal at this time for discrimination claims based on sexual orientation was £27,936. There is clearly more work to be done, and as individuals and corporations we need to do what we can to influence and support important developments.

How can employers and employees champion the LGBTQ+ community?

There are a number of steps that employers and employees should take. We highly recommend that you:

• Speak up – employers and employees should do their part in preventing and speaking up about discriminatory behaviour.
• Facilitate and encourage – it is important that the LGBTQ+ is spoken about and for there to be open conversations amongst all employees.
• Educate – all employees should be educated and continue to be educated by way of regular training sessions, as well as employees educating themselves.
• Awareness – employers should be raising awareness through communications with staff. This should not only be during Pride Month, but they should be proactively championing the topic on a regular basis throughout the year.
• Policy – companies should have a written equality, diversity and inclusion policy that is inclusive and accessible to all, and this should be actively broadcasted to all employees. Employers should also ensure that their family friendly policies are fully up to date.
• Appoint – appointing LGBTQ+ champions and promoting a network of allies.

How can Ellis Jones help?

Our specialist LGBTQ+ solicitors always get to know you and/or your business and your circumstances, so we are able to guide you through any matters that may be relevant to you.

If you are an employer or employee that feels you could benefit from advice from our employment team, please do not hesitate to contact our specialist LGBTQ+ solicitors by calling 01202 525333 or via email at lgbt@ellisjones.co.uk.