Recent press coverage has been firmly focused on sports stars leading the way in publicly coming out as gay. However, despite the progress which is being made, prejudices do still exist. This was seen most recently when a lesbian was sacked from a gay-friendly estate agency in Brighton. Although this was found to be because she was pregnant, rather than because of her sexual orientation, the case is a timely reminder for employers in the property industry to ensure that their working environment is fair to all individuals irrespective of their sexual orientation, or indeed any other protected characteristic which they may have.
THE LEGAL POSITION
Discrimination law is clear: the Equality Act 2010 applies to employees with certain characteristics and there are nine characteristics in total that are “protected” for the purposes of the Act. For our purposes here, we will concentrate on sexual orientation, and employers’ duties to ensure equal treatment to this group.
WHEN CAN SEXUAL ORIENTATION DISCRIMINATION ARISE?
Employers and managers can directly discriminate against a worker, employee or a job applicant if that person is treated less favourably because of their actual or perceived sexual orientation or because they associate with someone of a particular sexual orientation. Examples of direct discrimination on grounds of sexual orientation can include:
Deciding not to employ someone who has all the skills and attributes to do the job because they tell you at the interview that they have a same sex partner;
Dismissing someone because they tell you in confidence that they have just come out as bisexual;
Refusing to provide a person who is gay, lesbian or bisexual with training;
Denying a person a promotion because they have a number of openly gay friends; and Giving a person less favourable terms and conditions of employment simply because you think they may be bisexual.
This form of discrimination arises where employers have selection criteria, policies, benefits, employment rules or any other practice that is applied to all employees, but which have the effect of disadvantaging someone with a particular sexual orientation. This amounts to unlawful discrimination unless the employer can objectively justify the practice by showing that it is proportionate and achieves a genuine business need.
Indirect discrimination requires a person to show that the practice applied by the employer puts people of the same sexual orientation at a group disadvantage and they are individually disadvantaged by that practice. Take for example a commercial bed and breakfast which is sold. The new owner advertises for a management team on the basis they must be husband and wife. In this case, the recruitment practice would disadvantage anyone in a civil partnership or who is not straight and therefore put that ‘group’ at a disadvantage. This is because a gay person or someone in a civil partnership would not be able to meet the requirements of the advertised job role because of their sexual orientation. If, then, a couple in a civil partnership applied for the role but were turned down because they did not meet the husband and wife condition, they would be able to show that they had individually been disadvantaged by the practice. It would then be a case of the new owner trying to establish a genuine business need for the recruitment practice and being able to show that the practice was proportionate if they were to avoid falling foul of an indirect discrimination claim.
Any unwanted conduct related to a person’s sexual orientation which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them can amount to harassment under the Act.
Harassment can take many forms – it may be obvious or violent such as a prolonged campaign of bullying or it may be unintentional or subtle such as a simple one off remark. The obvious risk area for employers lies in general office ‘banter’ since calling someone by nicknames or teasing them because they are thought to be gay due to their effeminate manner can amount to harassment.
Furthermore, a culture and tolerance of telling homophobic jokes at work or behaviour that ostracises or excludes a particular person because of their sexual orientation can amount to harassment even when the person is not gay and that is known to the perpetrator.
Employers can also fall foul of the Act if, an employee makes a claim for sexual orientation discrimination or simply raises a grievance about the workplace behaviour towards them and is then treated less favourably for no other reason than because they have made that claim or complaint.
Failing to maintain confidentiality
With the current trend to ‘come out’ employees or workers may reveal their sexual orientation to a manager in confidence or it may become known through social media, like many of the sports stars.
If someone comes out as gay, the general rule is that the disclosure made to you must remain private and confidential. If you go on to reveal that person’s sexual orientation without their permission then such conduct may be inappropriate and can amount to a breach of that person’s privacy and the Data Protection Act 1998. Furthermore, an employee who has the relevant continuous employment could resign and claim constructive unfair dismissal on the basis they have been discriminated in the workplace because of their sexual orientation. Therefore, employers must take reasonable steps to ensure confidentiality at work is maintained in respect of any disclosures relating to a person’s sexual orientation and that policies are in place to address this issue.
Consequences of discrimination taking place
If, any of the above practices take place, this can expose the employer (and, in fact, the alleged perpetrator themselves) to the risk of Tribunal claims. While protection from unfair dismissal is available to employees based on their continuous length of service, importantly there is no requirement for any particular length of service for making a discrimination claim.
In addition, while the maximum compensatory award for unfair dismissal claims is capped, a discrimination award can be unlimited depending on the severity and period of treatment towards an individual. Therefore the financial consequences for employers who get it wrong and fail to prevent discrimination in the workplace can be significant.
BEST PRACTICE ADVICE TO EMPLOYERS
- Given the legal minefield, employers can reduce the risk of a discrimination claim being brought by following these steps:
- Do not set selection criteria for job roles, promotions or benefits that prevent certain individuals from applying for them because of their sexual orientation (or indeed any other protected characteristic).
- Avoid asking questions in application forms or at interview about a person’s sexual orientation, marital status or civil partnership that may be seen as intrusive and imply potential discrimination.
- Use standardised interview questions or tests to check skills and competencies needed for the post. The only information to be considered by the decision-maker is whether the person can do the job and no assumptions at the recruitment stage should be made about whether a person will fit in to the workplace because of their sexual orientation.
- Ensure that you have an up to date equality policy in place and that all staff are trained to understand their rights, responsibilities and they are treated consistently. This will help limit unlawful treatment in the workplace because staff will better understand acceptable standards of behaviour.
- Include training on practical examples of unacceptable homophobic and biphobic comments, such as jokes and inappropriate language that may be intended as ‘banter’, but could have the effect of being degrading or distressing to another person. In addition, any words that can be seen as offensive may be viewed as harassment.
- Ensure that all staff members are aware that if they are found to breach the company’s equality policy they could face disciplinary action. They could even be held personally liable for any compensation awarded to an employee or worker.
- Inform staff of the steps they may take if they feel they have been discriminated against because of their sexual orientation. For example, they could raise a formal grievance or discuss the issue informally with their manager in confidence.
- Have a clear confidentiality policy in place setting out how personal disclosures will be treated and ensure that all staff members are trained on their rights and responsibilities to maintain confidentiality.
Treat breaches of the equality policy and/ or a failure to maintain confidentiality seriously and consistently.
Bhavika Badola is an employment solicitor at Shoosmiths. She advises organisations both in the private and public sector in relation to all aspects of contentious and non-contentious employment and business immigration law.