Discrimination and bullying because of sexual orientation: an introduction
It is unlawful to treat a person unfavourably at work because of sexual orientation. Sexual orientation is attraction to people of the same sex (lesbian or gay), the opposite sex (heterosexual or straight) or people of either sex (bisexual).
The law protects everyone, but it is lesbian, gay and bisexual workers who are most likely to face this type of prejudice and discrimination.
Eliminating discrimination at work helps to make sure everyone has equal opportunities and a fair chance to develop their skills, and is treated with dignity and respect.
Your employer must not discriminate against you and must take all reasonably practicable steps to ensure that others do not discriminate against you whilst at work on grounds of sexual orientation.
The Equality Act 2010 protects workers from many forms of workplace discrimination, including sexual orientation.
In Northern Ireland, similar protection is provided in the Employment Equality (Sexual Orientation) Regulations (NI) 2003. Protection is on the grounds of actual or perceived sexual orientation.
What counts as discrimination or harassment?
The most common form of sexual orientation discrimination is harassment, such as prejudiced comments or abuse, exclusion or over-supervision.
This includes actions such as homophobic comments made to you even if you are not and are not perceived to be homosexual. It could also be reflected in an employee’s terms of employment, such as access to family friendly benefits, or a refusal to offer employment, promotion or training.
Sexual orientation harassment at work occurs when someone engages in unwanted conduct related to sexual orientation which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. You may be being harassed if you are:
- subjected to unwanted comments;
A lot of people put up with harassment, hoping it will go away. But it usually won’t stop until someone takes action.
Complaints can be made under the Equality Act or the Northern Ireland regulations if you are being harassed or otherwise treated less favourably because of sexual orientation.
If you are forced to resign, you may also be able to make a constructive dismissal claim which can itself amount to an act of discrimination.
However, you should always try and seek advice before resigning.
What if you are being discriminated against?
If you think you are being harassed or otherwise discriminated against because of sexual orientation, it is advisable to start keeping a written record of every incident.
Initially, discrimination may be best addressed informally but there are other things you can do.
- Talk to your UNISON representative; ask them where you can get support as well as advice.
- Talk to the person who is discriminating against you or ask someone else to talk to them.
- If that doesn’t work, talk to your UNISON rep.
- If you’re still not satisfied, ask your UNISON rep about raising a formal grievance. The complaint could be taken to an employment tribunal. Strict time limits apply to employment tribunal claims (usually three months less one day from the act complained of – in Northern Ireland this is usually three months exactly) and are not extended just because you have followed your employer’s grievance process before bringing a claim before a tribunal. Find out more about employment tribunals.
Legal protection from discrimination
The Equality Act and the Northern Ireland regulations protect all employees from discrimination and harassment at work because of sexual orientation.
It covers all types of employment and workers, including apprentices, those working under contract and the self-employed.
The act and the regulations cover discrimination at work and makes it unlawful:
- for employers to have a rule, policy or practice that, for example, lesbian or gay workers would be less likely to be able to fulfil than heterosexual workers;
- to treat a worker less favourably because of their sexual orientation, their perceived sexual orientation or because they associate with someone of a particular sexual orientation.
Employers should have a policy that prevents discrimination in recruitment, pay, training, selection for promotion, disciplinary actions or grievances.
The public sector equality duty part of the act requires public-sector organisations to have due regard to the need to eliminate discrimination and promote equality and good relations in the workplace. Find out more about public sector equality duties.
In Northern Ireland, section 75 of the Northern Ireland Act requires public authorities to have due regard to the need to promote equality of opportunity between persons of different sexual orientations.
Next steps for UNISON representatives
- If your employer doesn’t have a policy in place to counter discrimination and harassment against employees because of sexual orientation, and to promote equality for lesbian, gay and bisexual people, negotiate with them to put one in place.
- If a member is being harassed or otherwise discriminated against because of their sexual orientation, be prepared to advise them. Refer to the guides below and if you are unsure, speak to your UNISON rep. Tell them where they can go for support – UNISON has a self-organised group for lesbian, gay, bisexual and transgender members [link].
- The member may ask you to speak to the person discriminating against them. You may also need to advise them on raising a grievance and attend grievance meetings with them.
- If a member seeks information, advice or representation, use the UNISON case form, which you can find via the all articles section of this topic.
- You should not be humiliated, subjected to unwanted comments, excluded or ignored because of your sexual orientation.
- The Equality Act and Northern Ireland regulations protect against direct and indirect discrimination, harassment and victimisation.
- If you think you are being harassed or discriminated against, talk to your UNISON rep immediately.
A co-worker is making me feel uncomfortable; she talks about my sexual orientation at work, but I am not sure if this is harassment: what should I do?
Under the Equality Act 2010 and the Employment Equality (Sexual Orientation) Regulations (NI) 2003, it would be considered harassment if your manager or co-workers engage in unwanted conduct which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for you or which violates your dignity.
You should speak to your UNISON rep. Find out how to contect your rep.
Whose responsibility is discrimination in the workplace?
The employer is generally liable for discrimination, harassment and victimisation at work.
But if, for example, an employee harassed a co-worker about their sexual orientation they are also liable.
I complained to my manager about being discriminated against at work and now the situation has got worse. Is there anything else I can do?
It is against the law to victimise an employee (ie subject that employee to a detriment or treat them worse) because they have complained about discrimination. You should speak to your rep immediately.
I am bullied at work because I am lesbian/bisexual/gay and the situation is unbearable. I am going to leave. Can I claim unfair dismissal?
If you have to resign because of your treatment and want to file a claim for unfair dismissal, you would need to show that your employer has committed a sufficiently serious breach of contract, such as the implied duty of trust and confidence, which meant you felt forced to leave.
You would also need evidence of the harassment.
Serious acts of deliberate discrimination by your employer would normally amount to a breach of the implied duty of trust and confidence.