Sexual orientation discrimination: A guide for employees

This guide for employees is about sexual orientation discrimination in the workplace.

It explains the meaning of sexual orientation discrimination and outlines the types of sexual orientation discrimination that are recognised by the Equality Act 2010.

Examples are given to help you recognise if you are being discriminated against together with guidance on what to do if you are the victim of sexual orientation discrimination.

The guide should be read alongside our introduction to discrimination and our guide on discrimination compensation.

What is sexual orientation discrimination?

Normally, sexual orientation discrimination is when you’re treated badly because you are gay or bisexual. It could also, however, be because you’re heterosexual.  Sexual orientation is defined as the gender of people you’re attracted to, whether they are people of the same sex, people of a different sex or people of either sex.

 

What are the different types of sexual orientation discrimination?

There are four types of sexual orientation discrimination, as outlined below.

Direct sexual orientation discrimination

Direct sexual orientation discrimination occurs when your employer or another employee (usually but not always a manager) treats you worse than they treat employees of a different sexual orientation.

For example, if you can show that you’ve been overlooked for promotion because of the gender that you’re attracted to, that would be direct sexual orientation discrimination.

One way of proving the discrimination would be for you to show that a colleague who was in a similar situation to you in all ways except for sexual orientation, was treated better than you. So in the above example about promotion, the colleague you’d be comparing yourself with would be the person who was promoted instead of you.

Indirect sexual orientation discrimination

Indirect discrimination is where your employer has a workplace practice or policy which appears to treat everyone the same, but in fact, places particular individuals at a disadvantage when compared with others.

Here is an example:

Xyz insurance company provides its customers with  24/7 customer support. It expects those employees who haven’t got young children to cover the night shifts and bank holidays.

This practice indirectly discriminates against gay and lesbian individuals: they are more likely to be given the night and bank holiday shifts as they are less likely to have children than people who aren’t gay or lesbian.

The company might however argue that this practice is justifiable because it has been seriously short-staffed and is now overcoming its staffing problems by attracting people with young children back into the workplace. They wouldn’t return if they had to work unsociable hours

Harassment related to sexual orientation

Harassment is the word used in the Equality Act 2010 for bullying when that bullying relates to a “protected characteristic”, such as sexual orientation.

Harassment is defined as ‘unwanted conduct that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

Harassment can take many forms. Sometimes it’s obvious physical abuse or unwanted contact. Hostile facial expressions or ignoring someone could also be types of discrimination.

Jokes about someone’s sexual orientation would also amount to harassment as they might be degrading, humiliating, offensive or even hostile. And it is how the victim perceives the jokes that is relevant. However, if you hurl insults back, your employer might challenge whether the jokes really were unwanted.

Victimisation related to sexual orientation

Victimisation has a technical meaning in the Equality Act 2010 – it is detrimental treatment because you complained about discrimination or did something relating to a complaint about discrimination. For example, if you gave evidence to support a colleague’s complaint and were then treated badly, that would count as victimisation.

What can you do if you’ve suffered from sexual orientation discrimination?

There are many ways to deal with discrimination against you in the workplace, and how you deal with it is a personal decision and depends on all the circumstances. Try resolving the problem informally in the first place, but if that doesn’t succeed:

You could raise a formal grievance

A grievance is a formal complaint and if you raised one, you would be letting your employer know how strongly you feel about their bad treatment and that you want things to change to ensure it doesn’t happen again.

You could make an employment tribunal claim

You could make an employment tribunal claim when you were still employed.  This might encourage your employer to offer to settle with you on the grounds that they don’t want to face the time and expense of defending your claim at an employment tribunal.

You could seek a settlement agreement

A settlement agreement is a legally binding agreement with your employer that you won’t bring a claim against them in a tribunal or other kind of court, in return for them paying you a sum of money. This is particularly suitable if things are so bad that you want to leave that employment.

You could Resign

You could resign on the grounds of constructive unfair dismissal and discrimination.  However, we really wouldn’t recommend that unless you have absolutely no choice, because if you aren’t in your employment you can’t negotiate any kind of settlement and you also can’t readily locate evidence to support your claim.

 

How much compensation could you get?

Compensation for discrimination is explained in depth in our guides on discrimination compensation and also on preparing your tribunal schedule of loss, so will only be dealt with very briefly here.

Compensation for financial loss caused by the discriminatory act has three main elements:

1. Financial loss caused by the act
2. Injury to feelings
3. Personal injury

 

For example, if your dismissal was discriminatory then you’d be awarded compensation for the time you’re likely to be off work. If you didn’t get a promotion, your compensation is because your wages didn’t increase. If you go on sick leave due to the stress caused, your financial loss would be the difference between sick pay and full pay.

Injury to feelings is compensation for the distress caused. One-off or unintended acts would get less compensation. Lengthy periods of intentional harassment would get more.

Personal injury is where you suffered physical injury or more often psychological injury likely to have a lasting effect and caused by the discrimination. This needs medical evidence to help prove it.

We would usually advise our clients against waiting for an employment tribunal claim to be heard by a tribunal. Instead, we would suggest you try to get compensation whilst still in employment. As well as the risk being lower, you have more bargaining power when you’re still employed.

How can you prove sexual orientation discrimination?

If your homophobic boss sends an email ranting about gay people, you have an obvious claim. Or if they make homophobic jokes in emails, the evidence won’t be a problem.

However, perpetrators of discrimination tend to choose times and places when it’s just you and them and when there are no other people around to witness their discriminatory behaviour.

Even if there were witnesses to the acts, you might find it difficult to persuade them to agree to provide witness statements in your favour, as they may be worried about risking their own position at work by so doing.

If you don’t have witnesses or written evidence, keeping a diary of discriminatory events (if there was more than one) or writing down your account of the incident immediately afterwards can be acceptable evidence at an employment tribunal. (See our guide on evidence gathering)

If you’re dismissed, should you claim unfair dismissal or discrimination?

Both types of claim have their advantages and drawbacks, and which one you chose will depend on your individual circumstances, as follows:

The main difference between discrimination claims and unfair dismissal claims is that discrimination claims don’t require you to have served a minimum of two years’ employment before you can bring a claim. Unfair dismissal usually does.

So, if you have suffered from discriminatory employment and haven’t been in your employment for very long, then you can still bring a discrimination claim to an employment tribunal, but you can’t bring a claim for unfair dismissal.

The other significant difference is that unfair dismissal compensation has a limit, which is set at one year’s gross pay or the statutory maximum, (£93,878 from April 2022), whichever is lower.

There isn’t a cap on discrimination compensation although discrimination can be far more difficult to prove, as already indicated.

 

Next steps

If you have experienced discriminatory action in your workplace because of your sexual orientation, and you have evidence to prove it, then you may be able to negotiate a settlement agreement or take your case to an employment tribunal.

Handling a discrimination case requires an excellent legal understanding of discrimination as well as the sensitivity and tact required to deal with the issues involved. We strongly recommend that you seek representation to help with your discrimination case.

Monaco Solicitors have had some notable successes in representing claimants in discrimination cases. So if you would like to find out more about how we can help you, get in touch:

• For a callback via this link,
• Phone 020 7717 5259
• Email communications@monacosolicitors.co.uk<