“Sexual orientation” is one of the nine protected characteristics defined in the Equality Act 2017 (the “Act”) and refers to a person’s sexual orientation towards:
- people of the same sex, such as a gay man or a lesbian woman;
- people of the opposite sex, being a heterosexual; and
- people of both sexes, also known as bisexuals – even if they have only ever been in a relationship with one sex.
It is unclear whether the protection would extend to people who are asexual (little/no sexual attraction to any sex) because the definition presupposes some form of sexual “orientation”. Furthermore, the definition does not refer to any particular sexual practice or preferences and doesn’t delve into the detail of what is often a private matter (ie on a personal level) within a potentially wide spectrum of personal/sexual proclivities. The extent of protection under the Act for someone who experiences sexual attraction to people of either or both sexes yet practices celibacy is likewise not expressly addressed.
It is not uncommon, like many of the other protected characteristics, for a claim of sexual orientation discrimination to also involve complaints of other protected characteristics, such as gender reassignment, sex and marriage and civil partnership. For example, being transgender does not in itself imply any specific sexual orientation, but transgender people may identify as straight, gay, lesbian, bisexual etc.
Protection against discrimination in relation to sexual orientation
In the Isle of Man, the following are potential claims arising under the Act:
- Direct discrimination – can occur when a person is treated less favourably because of their own sexual orientation, the sexual orientation of someone they are associated with (ie family member or colleague) or how their sexual orientation is perceived (regardless of whether the perception is correct or not!). A decision not to employ someone, to dismiss them, withhold promotion or training, offer poorer terms and conditions or deny contractual benefits because of sexual orientation may – where is cannot be lawfully justified – amount to direct discrimination.
- Indirect discrimination – this type of discrimination is typically less obvious than direct discrimination and can often be It occurs when a working practice, policy or rule is applied equally to all employees but puts someone of a particular sexual orientation at a disadvantage compared to employees who are not of that orientation, ie an employer offers certain benefits to an employee and their spouse, but the policy is outdated and only recognises marriage between a man and a woman. As such, the policy is discriminatory as it excludes same-sex couples as well as those in a civil partnership or same-sex marriage. This demonstrates that policies can become outdated and discriminatory over time as a result of a change in legislation or change in the composition of the workforce. It is therefore imperative that employers carefully monitor their policies and practices and, where issues do arise, ensure that such policies and practices are adjusted or amended accordingly.
- Harassment – where an employee is subject to unwanted conduct related to their sexual orientation which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, or of violating their dignity, ie shunning a co-worker because he is gay, is believed to be gay (but is, in fact, not gay) or because he has gay friends. Employers should ensure that staff are given clear guidelines about what constitutes harassment and that managers are trained on how to deal with it if it occurs. Should harassment take place, an employer who has taken reasonable steps to prevent it may have a defence.
- Victimisation –a term which is commonly misused and/or misunderstood. It occurs when someone is treated less favourably as a result of being involved with a discrimination or harassment complaint which concerns the protected characteristic of sexual orientation. A common example of victimisation is disciplining an employee for bringing or supporting a colleague’s tribunal complaint.
Notably, this kind of discrimination does not need to be intentional as it is unlawful regardless. This means that it can range from a one-off comment to a policy change that affects those of a specific sexual orientation.
Sexual orientation vs religion or belief
The relationship between the protected characteristics of sexual orientation and religion or belief can often result in tension or conflict between the two sets of rights within the workplace. Employers may therefore face difficulty balancing competing interests and values, eg ensuring that the rights of individuals to hold and express certain views do not (intentionally or otherwise) result in discriminating against or harassing others.
There is no hierarchy of protected characteristics, ie all protected characteristics are equal. Consequently, an employer should avoid being drawn into any potential conflict by consulting its policies and implementing a clear process based on the legal principles around discrimination, which can be objectively assessed and considered. That’s not to say that such matters will always be readily resolved, but it will be essential to have regard to rights of, and duties owed to, both parties in such a situation.
Case law examples where employers have got it wrong…
In terms of how the law has been applied in practice, the following are illustrations from decided (mostly UK) cases which help to put the legal protections in context:
- Refusing to hire someone because they were gay and had a long-term partner on the basis it would be disastrous for their business (Hubble v Brooks)
- A heterosexual woman who was made redundant from a mainly gay bar which then subsequently recruited male gay bar staff was found to amount to unfair dismissal and direct discrimination on the grounds of sex and sexual orientation (Hegarty v The Edge (Soho) Ltd)
- In Martin v Parkham Foods Ltd, the manner in which an employer carried out an investigation into alleged discrimination or harassment by an employee was insufficient due to the employer’s apparent discomfort in dealing with homophobia. The tribunal commented that the employer did not deal with the grievance as forcefully as it might have done had the issues not related to homophobia because of the employer’s in-built prejudice
- An employee was pressured to resign following a pornographic text which they accidentally sent to a female colleague instead of the employee’s male partner. The managing director, who had previously made homophobic remarks, repeatedly put pressure on the employee to resign, saying he was a “pervert” who would never be believed at a disciplinary hearing (X v Y)
- In the Jersey case of Flanagan a shop worker was found to have been victimised and unfairly dismissed following a grievance he raised concerning homophobic comments made by colleagues to the effect that “they should burn all the gays” and “throw napalm from the roof [on them]” in reference to Pride marches. The case dealt with both direct and vicarious liability of the employer for acts of discrimination and harassment.
Helpful tips for employers
- Recruitment – be clear on the skills, qualifications and experience needed for the job, consider where you are advertising (ie a church or family-related magazine would be expected to attract a different readership than one aimed at solely gay men), avoid references to any particular sexual orientation and only ask for information which is relevant to assess an individual’s ability to perform the tasks required. Do avoid asking direct or indirect questions as to someone’s sexual orientation – it happens more than you think!
- Training – provide training to all staff (in particular, senior managers and those investigating disciplinary/grievances) to develop an understanding of sexual orientation and what is and isn’t acceptable behaviour, ie a defence of “it’s just banter” isn’t going to fly
- Terms, benefits and promotion – ensure that terms of employment and access to benefits and opportunities are based on objective, non-discriminatory criteria ideally by reference to measurable outputs or qualities (eg number of years’ experience in a particular field or skill etc)
- Sexual orientation stereotyping – avoid making assumptions or comments about someone’s sexual orientation, ie based on dress, music preferences and other behaviours or how they show up at work. Such stereotyping can be done unconsciously which may lead to claims of discrimination by perception
- Confidentiality – respect an employee’s wishes for confidentiality and avoid “outing” their sexual orientation without their permission, which could amount to unlawful harassment, irreparably damage the employment relationship, and constitute a breach of data protection legislation.
The next article in our series will consider the protected characteristic of pregnancy and maternity.
If you have any questions about discrimination or other employment-related matters, please do not hesitate to get in touch with our Employment Team.
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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
