As an employer you have a legal obligation to ensure you do not unlawfully discriminate against any job applicant or employee on the ground of sexual orientation. For example, it would be unlawful to select a less qualified employee in a promotion process because you disapprove of the different sexual orientation of a better qualified candidate and who, but for their sexual orientation, would otherwise have been selected.
The law on sexual orientation discrimination
There are two main pieces of legislation which prohibit sexual orientation discrimination in Northern Ireland.
The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 make it unlawful for employers and others to discriminate on grounds of sexual orientation in the areas of employment, self-employment and vocational training. The regulation applies to all employers, regardless of their size.
The regulation makes it unlawful to discriminate on the grounds of sexual orientation against employees, agency workers, job applicants and in some cases, former employees. Employers must not discriminate in areas including, the recruitment and selection process, the terms and conditions they offer, the opportunities afforded (or not afforded) for promotion, transfer, training or access to benefits or by dismissing a staff member or causing him/her any other detriment.
It is also unlawful to harass an employee or job applicant on the grounds of sexual orientation. See preventing bullying and harassment.
The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 make it unlawful to discriminate on the grounds of sexual orientation in the provision of goods, facilities or services; premises; education and public functions.
Further guidance on sexual orientation discrimination
The Equality Commission for Northern Ireland has responsibility for promoting compliance with the law and for advising employers. Contact the Equality Commission.
The law on gender reassignment discrimination
Gender reassignment is when a person changes from their birth sex to their preferred gender.
The Sex Discrimination (Northern Ireland) Order 1976 defines gender reassignment as:
“a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process.”
The Sex Discrimination Order (NI) Order 1976 makes it unlawful to discriminate in the areas of employment and in the provision of vocational training against someone on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment.
An example of gender reassignment discrimination might be where you dismiss an employee because they have been taking time-off work to attend appointments for medical treatment relating to their gender reassignment, in a situation where you would not have dismissed any other employee who had similar periods of absence for any reason not related to gender reassignment.
Another example might be where you do not permit an employee who begins living as a member of the opposite sex the use of the staff toilets appropriate to their reassigned sex.
A person can make a discrimination claim against an employer or another employee for any unlawful discrimination. See further guidance on gender reassignment discrimination.
Gender reassignment harassment is also unlawful. For example, if a manager deliberately persists in referring to a male-to-female transgendered team member as ‘him’ and ‘he’, in the full knowledge that the person finds it upsetting, this would be harassment.