Here we list a selection of key cases, reported since 2011, on sexual orientation discrimination in the workplace, providing a summary of the decision and implications for employers.

[2017] UKSC 47
Issue: Pensions - same sex partnerships

This important case was brought by a gay man seeking to establish that, when he died, his husband would get the same survivor’s pension as a partner in a heterosexual marriage. The context was that gay civil partnerships became possible from December 2005. Because discrimination against gay couples was not originally against the law, the Equality Act 2010 made an exemption for pension providers meaning that employers did not have to give pension benefits accruing before December 2005 to civil partners. This case involved a challenge to that exemption.

The claimant had joined his employer’s pension scheme in 1980 and he and his partner registered a civil partnership in 2006. In that year the pension scheme was amended to take account of civil partnerships and provided for two thirds of a spouse’s pension. However, as permitted by statute, for civil partners the benefit was only paid for service on or after 5 December 2005.

The claimant calculated that:

  • in the event of his death, his partner would be entitled to around £500 per annum, but
  • if he was married to a woman of the same age as his partner, she would be entitled to a pension of approximately £41,000 per annum.

He therefore claimed sexual orientation discrimination under the Equality Act 2010 against his employer and the trustees of the pension scheme. He said he and his partner were being treated much less favourably than a married person in the same situation because of their sexual orientation.

The key issue was whether UK law was incompatible with the Equal Treatment Directive and EU law.

Supported by the human rights and civil liberties organisation Liberty, the matter reached the appeal courts and eventually the Supreme Court (SC).

Decision

Walker won the case so that his husband (if they remain married) would be entitled to a full survivor’s pension calculated on the basis of all his years of service with Innospec. The five judges in the SC did arrive at the result differently but overall ruled that the exemption in the Equality Act 2010 allowing employers and pension schemes to exclude civil partners from pension benefits accruing before December 2005 was unlawful, and should not be applied as it was incompatible with EU law. (Other ECJ’s rulings had previously suggested similar exceptions were inconsistent with EU law, but it took many years for this to be confirmed in the Walker case.)

Implications

Following the SC’s decision, it became clear that same sex civil partners or spouses are entitled to survivor benefits in the same way as opposite sex husbands and wives. This case was seen as a victory for gay rights ensuring that occupational pension schemes equalised the treatment of gay couples with that of opposite-sex married couples. The pensions minister later confirmed that this judgment would continue to apply after Brexit.

If a person in an opposite sex marriage is treated less favourably than a person in a same sex marriage or civil partnership, or vice versa, that treatment amounts to direct discrimination on grounds of sexual orientation. Where pension schemes contain provisions deemed discriminatory, those provisions must be disapplied.

Following the case, the government confirmed same sex survivor benefits in public sector schemes would be equalised following both this case and a re-consideration of a review of same sex survivor benefits originally published in June 2014. The government statement noted that private sector schemes are individually responsible for ensuring they are compliant with the judgment in the case and equality legislation and should seek their own advice on compliance.

On 20 July 2020, the Chief Secretary to the Treasury, Steve Barclay, announced in a written ministerial statement that the government would consult to address potential sexual orientation discrimination against widowers in opposite-sex marriages, for example, with amendments to the Teachers' Pension Scheme and several other public sector schemes.

(unreported, [2011] EWCA Civ 769 1 July 2011, CA)
Issue: Harassment

A gay employee worked in a Land Registry office where he was ‘out’. He moved to another office where he decided to delay revealing his homosexuality. His new manager mentioned his sexuality to another colleague, as well as making references to it at a dinner party. The employee brought sexual orientation and harassment claims.

An employment tribunal held that the manager’s decision to reveal the employee’s sexuality was less favourable treatment on the grounds of sexuality. It also stated that it was legitimate for the employee to have control over how, and when, he revealed his homosexuality at his workplace.

The Court of Appeal ruled, upholding the Employment Appeal Tribunal decision, that the employment tribunal had not taken into account that the employee had been ‘out’ at another office and many employees in the Land Registry were aware that he was gay. It also found that his manager had no ‘ill purpose’ in revealing his sexuality and so there could be not direct discrimination or harassment.

Implications for employers

  • Employers should always proactively enforce their equal opportunities policies and act to ensure that conduct between employees does not amount to discrimination or harassment.
  • Employers should discipline the perpetrators of discriminatory or harassing conduct where appropriate.
  • If employees disclose their sexuality to their employer in confidence, then they have the right to keep their sexuality private and ’outing’ a gay employee may well give rise to discrimination.
  • The fact that a gay employee has already come 'out’ is taken into account in assessing if subsequent conduct by colleagues amounts to discrimination or harassment.
  • However, it is very important for employers to note that the fact that a gay employee has come out does not mean subsequent references to their sexuality will not amount to discrimination or harassment.
  • The court will always consider ’to whom a remark is made, in what terms and for what purpose.’ How the employee sees the treatment they have received, remains a key consideration in deciding if that conduct amounts to discrimination or harassment.
  • Employers will have discriminated as well if they do not act to protect the employee.

Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.

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