Guide

Employing and supporting LGBT workers

What is sexual orientation discrimination in the workplace?

The law protects all job applicants and employees, whether they are heterosexual, lesbian, gay or bisexual (LGB) from being subjected to such discrimination at work. Unlawful discrimination can occur when a person is treated less favourably or harassed because of their own sexual orientation, or their perceived sexual orientation, or because of the sexual orientation of people with whom they associate.

Employees are protected from discrimination throughout the job application and interview process, the duration of their employment including any probation or notice period.

Sexual orientation discrimination can happen in a number of ways in the workplace. Outlined below are the types of discrimination that can occur and examples of these.

Direct discrimination

Direct discrimination is where someone is (or would be) treated less favourably than someone else on the ground of sexual orientation. For example, this could be promoting someone who is heterosexual instead of an equally qualified gay person where the reason for the treatment relates not to their relative merits but to the differences in their sexual orientations. Direct discrimination can refer to the unfair treatment of someone based on what you perceive their sexual orientation to be. It can also be treating someone less favourably because of the sexual orientation of a friend or relative.

Indirect discrimination

Indirect discrimination is where workplace provisions, criterions, practices or rules, which apply equally to all staff, may put a person of a particular sexual orientation at a disadvantage. For example, if your company has a policy which expects staff without a young family and children to work more unsociable shifts this may put LGB staff, who are less likely to have children, at a particular disadvantage. In certain circumstances, indirect discrimination can be justified if it is if for a legitimate reason and the means to achieve it are proportionate.

Harassment

Harassment refers to unwanted conduct which violates someone’s dignity or creates an intimidating, degrading, humiliating or offensive environment. This includes making jokes about a LGB member of staff, or a manager not challenging staff who are making discriminatory jokes in the workplace. The law states that an employer may be liable for the behaviour of its employees, where they have not taken all reasonably practicable steps to prevent the harassment from occurring.

Victimisation

Victimisation is when someone makes a claim or complaint, or gives evidence in support of a colleague making a complaint, about being unlawfully discriminated against or harassed on grounds of sexual orientation and they are in turn treated less favourably, in retaliation for the complaint, or the support that was given. For example, excluding someone from regular company social events. Employers should investigate complaints and address any behaviour that leads to someone feeling they are being victimised in the workplace.