Discrimination on the ground of sexual orientation under the Equality Act 2010

Who does the Act protect?

The Act protects heterosexuals, gay men, lesbians and bisexuals. Where a person is wrongly perceived as being gay, for example, they will be protected by the Act. Associated persons, for example the family of a person, are also protected by the Act.

What does the Act prohibit?

The Equality Act 2010 prohibits discrimination (whether direct or indirect), harassment and victimisation on the ground of a person’s sexual orientation.

What is direct discrimination?

Direct discrimination occurs where a person treats another person less favourably than he or she treats or would treat others on grounds of their sexual orientation. This may include, for example, not employing a gay man at a child care centre for fear that the safety of children will be put at risk.
However, conduct which would on the face of it amount to direct discrimination is permitted if the conduct amounts to a proportionate means of achieving a legitimate aim.

What is indirect discrimination?

Indirect discrimination occurs where a provision, criterion or practice, which is applied or would apply equally to persons not of the same sexual orientation, puts persons of a particular sexual orientation at a disadvantage. For example, preferring job applicants who have children may amount to indirect discrimination since gay people are less likely to have children.

Conduct which can be shown to be a proportionate means of achieving a legitimate aim is, however, permitted.

What is harassment?

Harassment occurs where a person is subjected to unwanted conduct related on grounds of their sexual orientation which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. This may include, for example, making homophobic jokes in the workplace.

What is victimisation?

Victimisation occurs where a person is subjected to a detriment by reason of the fact that he has (or it is believed that he has or may) carried out one of the following acts:

  • brought or given evidence or information in proceedings brought under the Act;

  • the doing of something for the purposes of or in connection with the Act.

  • made an allegation that a person has contravened the Act.

However, the giving of false evidence or information, or the making of a false allegation is not protected by the Act if it is given or made in bad faith.

In what circumstances does the Act apply?

Employment

The Act applies to all aspects of employment including recruitment, terms and conditions of employment, training, promotions and transfers, dismissals and redundancy.

Employers are still able to discriminate where such discrimination is a proportionate means of achieving a legitimate aim.

The Act applies to contract workers, partners of firms and anyone in vocational training as well as employees.

Other situations

The Act prohibits a person who provides services to the public or a section of the public (for payment or not) from discriminating against, harassing and victimising a person requiring a service by not providing the person with the service and during the provision of the service.

The Act also prohibits discrimination, harassment and victimisation in schools and further and higher education institutions by associations and in relation to the disposal, occupation and management of premises.

How is the Act enforced?

Where a provision of the Act is contravened proceedings can be brought through the Civil Courts. If the claim arises out of the employment of a person a claim can be brought in an Employment Tribunal.

A wide range of remedies are available to the Civil Courts and Employment Tribunals including the power to award compensation for injured feelings and to make recommendations to reduce discrimination in the workplace.

Normally claims brought in the Civil Courts will have to be brought within 6 years of the date of the act to which the claim relates and within 3 months in the case of claims brought in an Employment Tribunal.