Avoiding sexual orientation discrimination: a guide for employers

Following official guidance and taking action to build an inclusive culture will reduce the risk of claims, says Charlotte Geesin

by Charlotte Geesin 8 February 2023

Sexual orientation discrimination is when a person is treated differently because of their sexual orientation in one of the situations that are covered by the Equality Act 2010. The treatment could be a one-off action or as a result of a policy that an employer has implemented. Similar to other forms of discrimination, the act or omission does not need to be intentional to be unlawful. Sexual orientation has been defined as ‘a person's emotional, romantic and/or sexual attraction to another person’.

The Equality and Human Rights Commission has published guidance on sexual orientation discrimination and the Equality Act, including a code of practice on employment. The code gives important guidance on good practice; failure to follow it may be taken into account by tribunals or courts, and is therefore an important read for all businesses. Ultimately though, the Act prohibits discrimination because of:

a person's sexual orientation, including being heterosexual;

someone thinking that a person has a particular sexual orientation; and

someone being connected to someone who has a particular sexual orientation.

Under the Equality Act, sexual orientation includes how a person chooses to express their sexual orientation, such as through their appearance or their dress. However, sexual orientation discrimination is different to discrimination because of gender reassignment. While many of the relevant legal principles are the same, ‘gender identity’ has been defined as ‘a person's innate sense of their own gender, whether male, female or something else, which may or may not correspond to the sex assigned at birth’. Gender reassignment discrimination, therefore, is when someone is treated less favourably because of being trans and this covers people whose gender identity differs from the gender assigned at birth. To undergo gender reassignment can include undergoing some sort of medical intervention, but it can also mean changing names, pronouns, dressing differently and living in their self-identified gender.

Although illegal for the most part, there are some circumstances when being treated differently because of sexual orientation is lawful, for example:

when belonging to a particular sexual orientation is essential for a job. Here, the employer must be able to show that there is a genuine need, taking account of the type of work;

when an organisation is taking positive action to encourage or develop gay, lesbian or bisexual people to participate in a role or activity. The provisions relating to positive action are, however, complex and must be handled very carefully. Different provisions apply concerning positive action relating to recruitment and promotion; and

when the treatment by an employer or organisation falls within one of the exceptions that permits people to be treated differently based on their sexual orientation.

Employers should strive to build inclusive workplaces and encourage employee engagement strategies to remove unfair discrimination and bias.

Although there's no legal requirement to have a written inclusion and diversity policy, it can be a good idea to implement one. In some discrimination claims, a policy may help employers to establish a defence as it could go some way to showing that they took all reasonable steps to prevent the discrimination occurring. A policy also demonstrates the organisation takes its legal and moral obligations towards being a diverse and inclusive employer seriously.

Employers should:

communicate any policies that they do implement and ensure any documentation is easily accessible to all;

ensure all employees understand their personal responsibility to treat colleagues with respect;

make sure all staff are aware of how to report instances of bullying, harassment or discrimination on the basis of sexual orientation and feel able to do so. Dealing proactively with all complaints of inappropriate behaviour swiftly, seriously and compassionately will be of importance and overall benefit; and

ensure line managers understand their role in promoting inclusion and addressing contrary behaviours. Ensure they are trained and confident to challenge any form of inappropriate behaviour.

Charlotte Geesin is legal director at Howarths

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