Understanding Sexual Orientation Discrimination

Discrimination and Sexual Orientation

This note examines sexual orientation discrimination in employment under the Equality Act 2010 (EqA 2010). The EqA 2010 implements the sexual orientation aspects of the Equal Treatment Framework Directive (2000/78/EC), prohibiting direct and indirect sexual orientation discrimination, harassment, and victimisation in the workplace.

Discrimination of Sexual Orientation

Sexual orientation is one of nine protected characteristics covered by the EqA 2010, which aims for a consistent approach across these characteristics where possible. The Act protects a wide range of individuals in employment, occupation, and vocational training, including job applicants, those "in employment" under various contract types (employees, employee shareholders, workers), and self-employed individuals whose contracts oblige them to perform work personally.

The EHRC Employment Statutory Code of Practice (the EHRC Code), last updated in September 2015, is a key guide, and employment tribunals are obliged to consider it when hearing claims under the EqA 2010. If an employee discriminates against or harasses another, the employer will be liable unless it has taken reasonable steps to prevent such conduct. The offending employee may also be liable.

Retained EU Law: The EqA 2010 was enacted partly to implement EU law, and until a relevant senior court departs from it, it must still be interpreted in accordance with assimilated EU case law. The Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) introduces major changes, including facilitating departure from retained EU case law, but the Equality Act 2010 (Amendment) Regulations 2023 reproduce certain interpretive effects of retained EU case law in domestic law from 1 January 2024.

Definition of “Sexual Orientation”

Under section 12(1) of the EqA 2010, sexual orientation is defined as a person's sexual orientation towards:

• Persons of the same sex.

• Persons of the opposite sex.

• Persons of either sex.

The Supreme Court has confirmed that the EqA 2010 definitions of "man", "woman", and "sex" refer to biological sex. This means "sex" means biological sex, a "woman" is a biological woman or girl (person born female), and a "man" is a biological man or boy (person born male).

Section 12(1) protects gay men, lesbians, bisexuals, and heterosexuals. It does not extend to those who are asexual, nor does it include particular sexual practices (e.g., sadomasochism, bestiality) or cover celibacy. Discrimination against trans people is covered under section 7 (gender reassignment), not section 12(1).

Types of Discrimination

The EqA 2010 makes it unlawful for an employer to engage in:

• Direct discrimination.

• Indirect discrimination.

• Harassment related to sexual orientation.

• Victimisation.

Direct Discrimination

Direct sexual orientation discrimination occurs when a person (A) treats another (B) less favourably than A treats or would treat others because of sexual orientation. This type of discrimination cannot be objectively justified, but an employer might be able to rely on a specific exception, such as an occupational requirement, to avoid liability.

Comparators

An employee claiming direct discrimination must show less favourable treatment compared to a real or hypothetical comparator whose circumstances are not materially different, except for their sexual orientation. For example, a non-homosexual comparator in a claim of discrimination based on homosexuality.

Civil Partnership vs. Marriage

The EqA 2010 explicitly states that being a civil partner versus being married is not a material difference for discrimination purposes (section 23(3)). This means a gay employee in a civil partnership must not be treated less favourably than a heterosexual married employee, which has implications for benefits like survivors' pensions, staff concessions, and health insurance.

"Because of" Sexual Orientation

The less favourable treatment must be "because of" sexual orientation. This requires the tribunal to consider the employer's conscious or subconscious reason for the treatment.

Sexual Orientation Discrimination Case Examples

Bull and another v Hall and another

Hotel owners refused to allow a homosexual couple in a civil partnership to stay in a double-bedded room. The Supreme Court found this was direct discrimination because, at the time, homosexual couples could not marry, and the policy of only allowing married couples to share a double bed was indissociable from heterosexual orientation.

Lee v Ashers Baking Co Ltd

A bakery refused to bake a cake with the caption "Support Gay Marriage" for a homosexual customer. The Supreme Court ruled this was not direct discrimination because the reason for the refusal was the message on the cake, not the customer's sexual orientation. Support for gay marriage is not a proxy for any particular sexual orientation.

Association and Perception

Less favourable treatment can be "because of" sexual orientation, even if it's not the victim's sexual orientation that is the reason for the treatment.

Discrimination by Association

Treating an employee less favourably because of the sexual orientation of someone they associate with (e.g., having gay friends).

Discrimination by Perception

Treating an employee less favourably because the employer perceives them to be of a certain sexual orientation, regardless of their actual sexual orientation (e.g., a heterosexual male thought to be gay for frequenting gay bars).

Refusal to follow discriminatory instruction

Treating an employee less favourably because they refused to follow a discriminatory instruction.

Discriminator's Sexual Orientation

It does not matter whether the discriminator shares the protected characteristic; it is no defence to a direct discrimination claim.

Homophobic Public Statements

Public statements, even on social media, by a person about not employing gay individuals can amount to discrimination if there is a link between the statements and conditions for access to employment which is more than hypothetical. New section 60A into the EqA 2010, effective 1 January 2024, prohibits such discriminatory statements made to the public or a section of the public in connection with work decisions, even if no active recruitment is ongoing.

Direct Discrimination Case Examples

Refusal to employ a gay couple

Hubble v Brooks

Here, it was found to be direct discrimination when a pub owner stated they would "not employ” a gay couple.

A heterosexual woman was sacked from a gay bar

Hegarty v The Edge (Soho) Ltd

This case demonstrated that both gay and straight workers are protected, finding direct discrimination when a heterosexual woman was "made redundant" from a gay bar and replaced by male gay staff.

Inadequate Grievance/Disciplinary Investigations

Cases like Martin v Parkam Foods Ltd and Aramark Ltd v Yahiaoui highlight employer liability for insufficient or biased investigations into homophobia. Secretary of State for Work & Pensions (Jobcentre Plus) v McCarthy found discrimination when managers made stereotypical assumptions about a gay worker during an investigation. Tywyn Primary School Governing Body v Aplin inferred sexual orientation discrimination from a flawed disciplinary investigation tainted with unconscious bias against a gay headteacher.

Pressure to resign following "pornographic text"

In X v Y, an employee was dismissed after accidentally sending a pornographic text to a colleague, with the managing director, who had previously made homophobic comments, putting pressure on him to resign and calling him a "pervert".

Policy of making pubs less attractive to gay customers

Lisboa v Realpubs Ltd found unlawful discrimination when a gay employee was pressured to cooperate with a policy designed to make a pub less welcoming to gay customers, despite the aim of repositioning the brand.

Indirect Discrimination

Indirect sexual orientation discrimination occurs where an employer applies a provision, criterion or practice (PCP) that disadvantages job applicants or employees of a particular sexual orientation, without objective justification. This applies even if the PCP is ostensibly neutral (applies to everyone) but has a disproportionate effect on a particular sexual orientation group.

Requirements

1. A applies a PCP to B.

2. B has a particular sexual orientation.

3. A applies (or would apply) that PCP to persons not of the same sexual orientation as B.

4. The PCP puts or would put persons of B's sexual orientation at a particular disadvantage when compared to others.

5. The PCP puts (or would put) B at that disadvantage.

6. A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Same Disadvantage (Section 19A EqA 2010)

A claimant can establish indirect discrimination even if they do not share the protected characteristic of the disadvantaged group, as long as they can show they have been disadvantaged in substantively the same way. This new section 19A was introduced on 1 January 2024 to reproduce the effect of EU case law (specifically CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia).

Group Disadvantage

Statistical proof is not always required, but should be used if available to prove a particular disadvantage.

Individual Disadvantage

The claimant must show that the PCP puts (or would put) them at a disadvantage, either because they share the sexual orientation of the disadvantaged group, or they suffer substantially the same disadvantage.

Objective Justification

If a prima facie case of indirect discrimination is established, the burden shifts to the employer to show that the PCP is objectively justified. This requires demonstrating a legitimate aim (a real business need) and that the PCP is a proportionate means to achieve that aim (reasonably necessary).

Indirect Associative Discrimination

While not explicitly referenced in section 19A, tribunals have adopted a purposive interpretation to allow claims where the claimant has an association with the disadvantaged group, focusing on the shared disadvantage.

Harassment

Sexual orientation harassment occurs where A engages in unwanted conduct related to sexual orientation, and this conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Acas research indicates most sexual orientation discrimination complaints involve homophobic bullying and harassment, often by a more senior person over a significant period.

"Related to" Sexual Orientation

This phrase covers conduct by reason of the claimant's own, perceived, or associated sexual orientation (e.g., shunning a co-worker believed to be gay or having gay friends). It also covers conduct, regardless of motivation, that is otherwise related to sexual orientation due to its form (e.g., telling offensive jokes about lesbians).

Purpose or Effect

If the conduct has the purpose of harassment, nothing more is needed. If unintentional, it must be reasonable for the conduct to have the proscribed effect; a victim being "hypersensitive" does not constitute harassment. In Pemberton v Inwood, it was not reasonable for a gay clergyman to feel his dignity violated by a Bishop's refusal to grant a licence, as the refusal was covered by an occupational requirement defence.

Claimant Being Openly Gay

While being openly gay might reduce the likelihood of unintentional harassment from a line manager making a reference to sexuality without ill intent (Grant v HM Land Registry), it does not mean subsequent remarks cannot amount to discrimination or harassment. "Outing" someone without permission may constitute harassment.

Employers' Liability

Employers should provide clear guidelines on harassment and manager training. An employer who has taken reasonable steps to prevent harassment may have a defence.

Harassment Case Examples

Harassment by hearsay

Habinteg Housing Association Ltd v Holleron suggested that harassing words reported via a third party could amount to harassment.

Comments in written statements

Wilkins v Mitchells and Butlers Retail Ltd upheld a harassment claim based on colleagues' written statements referring to the claimant's sexual orientation and intended to make life difficult for him.

"Chutney ferret" remark

Whitehead v Brighton Marine Palace and Pier Co Ltd found harassment even when an offensive remark was not made directly to the victim but reported to him.

Name-calling, impersonations and rumours

Brooks v Findlay Industries UK Ltd found harassment where such conduct violated dignity and created a hostile environment, noting the employer's failure to address rumours as direct discrimination.

Reasonable steps defence

Boyd v Little Haven Hotel upheld the employer's defence after a chef was dismissed for striking a colleague, as the Hotel had a strong equal opportunities policy and would have disciplined the colleague if there was corroborating evidence.

Abuse during the eight-day employment

Ditton v C P Publishing Ltd upheld claims of direct discrimination and harassment for homophobic insults and derogatory comments related to sexual orientation during short employment.

Harassment on grounds of perceived sexual orientation

Hoch v Thor Atkinson Steel Fabrications Ltd found sexual orientation harassment against a heterosexual employee, incorrectly perceived to be gay.

Victimisation

Victimisation occurs when A subjects B to a detriment because B has done, intends to do, or is suspected of doing or intending to do, any of the protected acts.

• Protected Acts include:

  • Bringing proceedings under the EqA 2010.

  • Giving evidence or information in connection with EqA 2010 proceedings.

  • Doing any other thing for the purposes of or in connection with the EqA 2010.

  • Alleging that the discriminator or any other person has contravened the EqA 2010.

There is no protection if a person makes allegations or gives evidence that they know to be false, but a person who complains mistakenly but in good faith is protected. Common examples include disciplining an employee for bringing a claim or for making informal complaints of discrimination.

Victimisation by Association

While not binding, an EAT decision in Thompson v London Central Bus Company Ltd suggested that claims for associative victimisation could proceed, allowing claimants to rely on protected acts of others.

Exceptions: When Sexual Orientation Discrimination May Be Lawful

While discrimination is generally prohibited, certain exceptions allow an employer to have a "defence".

Occupational Requirements (ORs)

The EqA 2010 sets out OR exceptions for direct or indirect discrimination claims relating to recruitment, promotion, transfer, training, or dismissal.

General OR

Applicable where, due to the nature or context of the work, being of a particular sexual orientation is an OR, and its application is a proportionate means of achieving a legitimate aim. This is rare for sexual orientation discrimination, arguably applying only to roles providing personal advice to gay men or lesbians, but less likely for administrative roles.

Organised Religion OR

Applies when employment is for the purposes of an organised religion. An employer can defend a claim if a requirement relating to sexual orientation is imposed to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of followers, and the claimant does not meet the requirement. This OR is not limited to requiring a particular sexual orientation; for example, it has been held legitimate for a church to require a gay employee to choose celibacy or abstain from sex.

Case Example

Pemberton v Inwood

The Court of Appeal upheld that a Bishop could rely on the religious OR to justify refusing a licence for a Canon to be a hospital chaplain because he had entered into a same-sex marriage, which conflicted with Church doctrine.

Reaney v Hereford Diocesan Board of Finance

While a celibacy requirement for a homosexual working for the Church of England was considered legitimate under the OR for organised religion, the OR defence was not available because it was not reasonable for the Bishop to be unsatisfied that the applicant met the requirement.

Positive Action

The EqA 2010 permits lawful "positive action" where persons with a protected characteristic are disadvantaged, have particular needs, or are disproportionately under-represented.

• General Positive Action (section 158): Employers can take proportionate measures to enable or encourage persons with the relevant characteristic to overcome disadvantage, meet needs, or increase participation.

• Positive Action in Recruitment and Promotion (section 159): Employers can treat a person with the relevant characteristic more favourably in recruitment or promotion if they are "as qualified as" other candidates.

Benefits Dependent on Marital Status

It is generally not sexual orientation discrimination to restrict access to a benefit, facility, or service to those who are married or in a civil partnership. There are also specific exceptions for rights accrued or payable in respect of service before 5 December 2005 (when the Civil Partnership Act 2004 took effect).

Case Example

Walker v Innospec Ltd

The Supreme Court confirmed that same-sex partners are entitled to equal survivors' pension benefits calculated on the basis of all pensionable service, not just service after the Equal Treatment Framework Directive was implemented. This decision will be codified in paragraph 18 of Schedule 9 to the EqA 2010.

Parris v Trinity College Dublin and others

The ECJ ruled that a "death-bed marriage" restriction in a pension scheme's qualifying requirements did not constitute discrimination on grounds of sexual orientation or age, despite the Advocate General's opinion. The ECJ noted that EU law did not require Ireland to provide for same-sex marriage/civil partnership retrospectively or implement transitional provisions.

Other Exceptions

Other exceptions include:

• National security: A discriminatory act done for national security purposes will not be unlawful if proportionate.

• Providing benefits to the public: An individual denied public benefits for a discriminatory reason cannot bring a sexual orientation claim in an employment tribunal simply because they are an employee of the provider.

Clash of Rights: Religion and Sexual Orientation

The interplay between the protected characteristics of sexual orientation and religion or belief can sometimes create tension in the workplace, requiring a balancing of conflicting rights.