This form of discrimination arises when someone is unfairly disadvantaged for reasons related to their sexuality. It has been illegal in the UK since 2003, with the law now incorporated into the Equality Act 2010. However, many gay, lesbian and trans people do not feel able to be ‘out’ at work. To change attitudes, organisations should promote an open culture of respect and dignity for all employees, and value difference.

This factsheet offers an overview of the different types of discrimination with examples of how these apply to sexual orientation and the treatment of LBGT people. It suggests good employment practices, covering the managing of equality and diversity issues, communication and training, the addressing of any incidents of harassment or bullying, and the reviewing of all policies and procedures - such as recruitment and selection, performance management and development - to ensure they are fair.

The Equality Act 2010 has streamlined the legal provisions relating to sexual orientation discrimination.

Employers must make sure that prejudice and stereotyping on the basis of sexuality doesn’t result in unfair decisions about jobs and training. Failure to do so could lead not only to legal costs but also lost productivity and damaged employer brand and reputation, as well as lost opportunities to gain business advantage. Increasingly, evidence points to the importance of managing diversity to gain a competitive edge in challenging markets.

Managing diversity successfully is key to good people management. Hard facts show that people can make the difference between good and poor business performance. But everyone is different, and unless employers take diversity seriously they will fail to recruit, retain and engage the commitment of the talent needed to sustain and improve business performance. Research into recruitment and talent management shows how diversity is being addressed to increase effectiveness. Employers who take no action to promote diversity will quickly become less attractive to the diverse labour market for talent and skills, and they will lose out to competitors.

This form of discrimination arises when someone is unfairly disadvantaged for reasons related to their sexuality. Sexual orientation discrimination has nothing to do with discriminating against someone because of their sexual practices, for example sadomasochism.

Sexual orientation is having a sexual attraction to:

  • persons of the same sex - homosexual (lesbians and gay men)
  • persons of the opposite sex - heterosexual
  • persons of both sexes - bisexual.

Such discrimination can:

  • adversely affect employment opportunities
  • result in failure to consider skills-based abilities, potential and experience
  • result in significant legal costs, compensation and settlements paid to avoid defending expensive discrimination claims.

However, many gay, lesbian and trans people do not feel able to be ‘out’ at work. A recent poll by the RBS-sponsored British LGBT Awards found three-quarters of lesbian and bi-sexual women were not out to all colleagues and external contacts, half were not out beyond their closest colleagues, and two in three had experienced a negative experience at work1.

Listen to our LGBT+ at work podcast

In the UK, all legislation relating to discrimination is contained within the Equality Act 2010. The Equality and Human Rights Commission publish a range of guidance on all aspects of the Equality Act (see Useful contacts). CIPD members can find out more in our Sexual orientation discrimination law Q&As.

In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.

Types of discrimination

Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics which includes sexual orientation.

Direct discrimination

This applies to all protected characteristics. It’s treating someone less favourably than another person because of a protected characteristic that they have. For example, it’s promoting a gay man rather than a heterosexual man because of their sexuality.

Indirect discrimination

Indirect discrimination occurs when:

  1. a provision, criterion or practice is applied to all, and:
  2. it puts a group with a protected characteristic at a disadvantage when compared with another group
  3. an individual is put at a disadvantage
  4. the employer cannot show it to be a proportionate means of achieving a legitimate aim.

For example, if a criterion is put in place that unsociable shifts must be undertaken by those without child-caring responsibilities. As it is currently statistically less likely for gay couples to have children or young families it means they are more likely to be given the unsociable shifts. Whilst the policy appears to treat all employees equally in practice it places gay staff at a particular disadvantage and amounts to indirect discrimination. The employer may attempt to justify the discrimination by showing that it is a proportionate means of achieving a legitimate aim.

Associative discrimination

This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone less favourably because their daughter is a lesbian.

Perceptive discrimination

This is treating someone less favourably because it’s perceived that they have a protected characteristic, whether they do or not. For example, treating someone less favourably because it’s perceived that they are gay when they are not.

Victimisation

Victimisation occurs when someone is treated less favourably because they have made or supported a complaint, or raised a grievance under the Equality Act 2010. It also applies if it’s thought that they have made a complaint. A comparator isn’t required for a claim of victimisation. Post-employment victimisation can occur - for example, refusing to give a reference to someone who had made a complaint under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.

Harassment

Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

There’s no longer any specific legislation making employers liable for harassment that comes from a third party (for example, a customer). However an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment.

Find out more in our factsheet on workplace bullying and harassment.

Occupational Requirement

Where there is an Occupational Requirement to employ a person with a particular protected characteristic, certain very limited exceptions from the law are permitted covering selection, promotion and training. The employer must be able to show that there is a genuine need, taking account of the type of work.

Positive action

Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled carefully. Different provisions apply concerning positive action relating to recruitment and promotion. For more information, visit the Equality and Human Rights Commission website (see Useful contacts).

Employers should screen policies and working practices to remove unfair discrimination and bias: this is key to effecting the creation of open workplace cultures where to be different is not a problem but an asset. It’s essential to address issues related to sexuality as part of a coherent diversity strategy.

To change attitudes, organisations should be encouraging good employment practices through managing equality and diversity issues, communication and training, and addressing specific areas. Get an overview of managing diversity and the benefits it brings from our factsheet on diversity in the workplace.

Managing equality and diversity issues

Actions should focus on:

  • Promoting a culture of respect and dignity for all employees through effective implementation of well-designed policies and procedures, which support both individual and business needs.
  • Fostering respect to realise different perspectives matter and that diversity is everyone’s responsibility.
  • Making the business case for diversity – view this as an opportunity, not a threat.
  • Assigning senior level responsibilities for driving diversity issues and allocating appropriate resources to drive change.
  • Thinking inclusively when designing diversity policies and procedures to ensure they are transparent, fair and address different needs.
  • Continually checking that policies and practices are bias free and fair, and are working across the organisation. Failure to carry out policy and practice reviews can undermine their effectiveness.

Communication and training

Employers should:

  • Make it clear what standards of behaviour are required of everyone, what kinds of behaviour will not be tolerated and the consequences of breaking the behaviour codes. Ensure line mangers understand their particular roles in addressing all incidents of harassment and bullying and make sure all employees understand their personal responsibility to treat colleagues with respect. Use a variety of communication methods and channels to do this.
  • Seek to monitor the diversity of the workforce by asking employees for relevant personal information, guaranteeing confidentiality and that it won’t be used to disadvantage people unfairly.
  • Be seen to act proactively and fairly on all incidents of harassment and bullying.
  • Use employees’ networking and support groups as a way of making sure employees understand diversity issues and take them seriously in ways that focus on business needs.
  • Make equality and diversity policies and statements easily accessible to all.

Addressing specific areas

Employers should:

  • Ensure recruitment and selection processes are fair and diversity friendly. Take care in drafting advertisements to avoid discrimination and stereotyping through language and images and aim to attract candidates from diverse sources. Indicate if any genuine occupational requirements apply.
  • Operate transparent and consistent appraisal and performance management processes. Have clear career paths including promotion and training opportunities for all employees.
  • Revise policies and procedures, and terms and conditions of employment to ensure fairness and legal compliance. For example, reward and recognition policies, flexible working practices.

Contacts

Acas – sexual orientation discrimination

GOV.UK - Employers: preventing discrimination

Equality and Human Rights Commission

Government Equalities Office

Stonewall

Books

ACAS (2016) Sexual orientation discrimination: key points for the workplace. London: Acas.

HOEL, H., LEWIS, D. and EINARSDOTTIR, A. (2014) The ups and downs of LGBs’ workplace experiences: discrimination, bullying and harassment of lesbian, gay and bisexual employees in Britain. Manchester: Manchester Business School.

RUBENSTEIN, M. (2016) Discrimination: a guide to the relevant case law. 29th ed. London: Michael Rubenstein Publishing.

STONEWALL. (2015) Stonewall top 100 employers 2015.

Journals

LOCH, P. (2014) Legal opinion: Sexual orientation issues with a global workforce. Employer’s Law. June. p11.

'Out' at work. (2011) IDS Employment Law Brief. No 929, July, pp13-19.

CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.

Members and People Management subscribers can see articles on the People Management website.

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