Sexual orientation — overview

There are four types of discrimination:

• direct discrimination

• indirect discrimination

• victimisation

• harassment

There is a great deal of commonality between the provisions relating to discrimination on grounds of:

• sex

• race

• sexual orientation

• religion or belief

• age

Time limits

The time limit is normally three months from the discriminatory act or omission (except for the armed forces where it is six months). The time limit can be extended whenever the tribunal considers it just and equitable to do so.

With effect from 6 April 2009 the statutory dispute resolution procedures were repealed, but they continue to apply in certain circumstances. In certain circumstances where the statutory dispute resolution procedures do apply, the operation of the statutory dispute resolution procedures will extend the basic time limit by an extra three months. For further details on when the statutory dispute resolution procedures will still apply, see Dispute resolution procedures — transitional provisions.

Discriminatory contractual terms are treated as continuing acts for the duration of the contract. Acts which extend over a period are treated as being done at the end of that period. These must be distinguished from single acts with continuing consequences.

No qualifying period of employment is needed to make a discrimination claim. A claim that the dismissal was discriminatory can be made without any qualifying period of service.

Effect of statutory dispute resolution procedures

STOP PRESS! The dispute resolution procedures were repealed with effect from 6 April 2009, but they continue to apply in certain circumstances. For further details on when the statutory dispute resolution procedures will still apply, see Dispute resolution procedures — transitional provisions.

The statutory dispute resolution procedures are potentially important to the bringing or defending of any discrimination claim. You need to clarify whether the grievance procedures apply, the dismissal and disciplinary procedures apply, or both. Where the grievance procedures apply, if a claimant fails to send a grievance to his employer at least 28 days before presenting his tribunal claim, the claim will be rejected. Failure by either party to complete any relevant statutory dispute resolution procedure will affect the amount of compensation awarded. Where a discrimination claim also includes a claim for unfair dismissal and the dismissal and disciplinary procedures apply but have not been completed through the employer's fault, the dismissal will be automatically unfair.

Effect of Acas Code of Practice

Where specified types of claim are brought by an employee, and the circumstances of that claim are such that a relevant Acas Code of Practice could apply, then the tribunal may increase or decrease any award made by up to 25%, if there has been an unreasonable failure to follow the Code of Practice. Schedule A2 sets out the types of claim which are covered by this provision, which includes all discrimination claims. It is more likely that the grievance procedure in the Code of Practice will apply in discrimination claims, but it is possible the disciplinary procedure may also apply.

For full details see Assessing discrimination compensation — Adjustment of awards for failure to complete statutory procedures and Acas disciplinary and grievance code — application, Acas disciplinary and grievance code — procedural requirements and Acas disciplinary and grievance code — effect of non-compliance.

Definition of sexual orientation

Sexual orientation describes the gender someone is attracted to — the same sex, the opposite sex, or both. There is DTI (now BIS) guidance giving further details of the coverage of the regulations.

Events which give rise to a claim

Events before, during and after employment may give rise to a claim.

During employment, discrimination regarding access to promotion, transfer, training, benefits, facilities or services, or by subjecting a person to any other detriment is unlawful.

After employment ends, it remains unlawful to discriminate against an ex-employee where that discrimination or harassment 'arises out of and is closely connected to' the former employment relationship.

Claims by employees

Discrimination claims can only be made in relation to employment at an establishment in Great Britain. This includes claims brought by applicants for positions at an establishment in Great Britain. Employees working wholly outside Great Britain will generally not be covered (but there are exceptions).

Employers may be liable for discrimination on their own behalf, vicariously liable for the acts of their employees and as principal for the authorised acts of their agents. Employers can only escape vicarious liability by showing they took all reasonably practicable steps to prevent the employee from doing acts of the relevant type. Employers are not generally liable to employees for the acts of third parties. Anyone who knowingly helps another to do an act of unlawful discrimination is liable as if they did the act themselves.

Individual employees who discriminate may be joined as additional respondents to a claim but cannot be the only respondent.

Claims by non-employees

The discrimination legislation covers: self-employed persons working under a contract to do work personally, contract workers, Crown employees, partnerships, barristers, the police, trade unions, organisations responsible for conferring qualifications, bodies that provide or arrange training, employment agencies or LEAs providing employment-related services and office holders.

Burden of proof

In deciding whether a claim is proven or not, the tribunal is required by statute to use a two-stage test. At stage 1, the tribunal must decide if the claimant has proved facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent has discriminated. If (and only if) the answer to stage 1 is 'yes', the tribunal proceeds to stage 2, when it is for the respondent to prove (by producing appropriate evidence) that it did not in fact discriminate. If the respondent fails to do that, the tribunal must find in the claimant's favour. The Court of Appeal has given the detailed 'revised Barton guidance' on this topic in Igen v Wong.

Direct discrimination

Direct discrimination is treating someone less favourably than another on one of the prohibited grounds (ie on grounds of sexual orientation, religion etc). A comparison must be drawn between the claimant and a comparator. That comparator may be a real or a hypothetical person but, in either case, that comparator's 'relevant circumstances' must be the same or not materially different. A person can be shown to act on prohibited grounds if 'but for' the sexual orientation, religion etc, of the claimant, their treatment would have been better. It is not necessary that the employer should have an intention to discriminate, or have a discriminatory motive.

Indirect discrimination

Indirect discrimination is when an employer applies a provision, criterion or practice (PCP) to a group including the claimant which places those within that group who share a characteristic (eg sexual orientation, religion etc) with the claimant at a particular disadvantage compared to those who do not. An employer may escape liability if it can show that imposing the PCP was 'a proportionate means of achieving a legitimate aim'.

Claimants may seek to prove indirect discrimination claims using statistics, in which case the tribunal will first have to establish the correct pool of persons to be involved in the comparison, which must contain both those who find it difficult (or are reluctant) to satisfy, or cannot satisfy the PCP and those who willingly satisfy it. The PCP is discriminatory if the percentage of those within the pool that willingly satisfy the PCP, and share the relevant characteristic with the claimant, is significantly lower than the percentage of those within the pool that cannot satisfy or have difficulty in satisfying the PCP who share that characteristic.

Justification

Justification is a defence to claims of indirect discrimination. It involves showing that the discriminatory provision, criterion or practice (PCP) was a 'proportionate means of achieving a legitimate aim'. Proportionality means balancing the degree of impact against the justification offered. A respondent can argue justification even if it did not consider the point when it imposed the PCP.

Victimisation

Employers victimise employees if they retaliate against them for asserting their rights under the discrimination legislation. It does not include honest and reasonable steps to protect its position taken by an employer facing discrimination proceedings, even if they amount to 'less favourable treatment'. The tribunal has to decide if the employee performed a 'protected act', then whether they have been less favourably treated, and finally whether the less favourable treatment occurred because the employee performed the protected act.

Protected acts include bringing discrimination proceedings, giving evidence in them, or merely alleging that someone has done something which would amount to unlawful discrimination. The protected act need only be part of the discriminator's conscious, subconscious or unconscious motivation.

Respondents can avoid liability if they can show that the allegation which formed the protected act was false and made in bad faith. It is also a potentially valid (albeit difficult) defence for an employer to show that they treated the claimant as they did not because of the fact that they did a protected act, but because of the way they went about it.

Harassment

One type of harassment is common to almost all types of discrimination: where someone, on a prohibited ground (sexual orientation, belief etc), subjects an individual to unwanted conduct which has the effect of violating their dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to them. The nature of the conduct does not matter. The claimant must show that:

• it was reasonable for the conduct to have had that effect on them (whether the perpetrator intended it to have that effect or not)

• the perpetrator behaved as he did because the claimant had a particular protected characteristic

Associative discrimination: on grounds of a third party's characteristics

Associative discrimination (a shorthand term used to describe direct discrimination and/or harassment that is suffered by a person because of another's protected characteristics) is unlawful where the protected characteristic is sexual orientation.

Pension scheme claims

The trustees or managers of an occupational pension scheme may not discriminate against a member or prospective member of the scheme on grounds of sexual orientation. The employer will be treated as a party to proceedings relating to pension schemes and entitled to be heard even if they have not been named expressly in the claim. The tribunal has special powers to declare that someone has a right to admission to a scheme or to membership without discrimination. It only has limited powers of compensation compared to the usual position.

Defences and exceptions

Illegality: only serious illegality instituted by a claimant is likely to lead to a tribunal declining jurisdiction, particularly where the claimant gained from it.

Public benefits: no discrimination claim can be made about benefits which the employer provides to the public on substantially similar terms as it provides them to employees.

National security: it is lawful to discriminate on grounds of sex, sexual orientation, religion or belief or age (but not race) in order to safeguard national security.

Diplomatic immunity: individuals working for an employer with state immunity cannot bring discrimination claims.

Positive discrimination: certain specific types of 'positive discrimination' are allowed, but it is otherwise unlawful to treat one group more favourably than another on prohibited grounds.

Benefits granted by reference to marital status: do not create any right to claim discrimination on grounds of sexual orientation

Genuine occupational requirements

Some jobs may require the holder to have particular personal characteristics. Usually, this is discrimination but there are specific exceptions where it will be lawful to require such characteristics. This type of defence is called the Genuine Occupational Requirement defence. This defence is usually available for discrimination involving: who should be offered employment; how employees are treated in relation to promotion, transfer or training; and dismissal. It is not usually a defence to discrimination involving the terms of employment, subjecting someone to a detriment or harassment. There are specific Genuine Occupational Requirement defences relating to sexual orientation in the context of religious organisations.

Remedies

A tribunal upholding a direct discrimination claim should consider, according to what is just and equitable:

• ordering compensation and/or

• making a declaration of rights and/or

• making a recommendation of action

It can take the wrongdoer's motivation into account in assessing whether it is just and equitable to order a particular remedy at all but not when deciding the amount of compensation.

Assessing compensation

Compensation may include general financial loss, injury to feelings, personal injury damages, interest, aggravated damages and exemplary damages.

Multiple respondents: the tribunal must choose between making individual awards against each respondent (reflecting their individual responsibility for the damage) or making all respondents jointly and severally liable for some or all of the award.

Statutory dispute resolution: STOP PRESS! the statutory dispute resolution procedures were repealed with effect from 6 April 2009, but they continue to apply in certain circumstances (see Dispute resolution procedures — transitional provisions). Where they apply and where the employee fails to complete a relevant statutory dispute resolution procedure, his compensation will usually be reduced by between 10% and 50%. Where the employer is at fault, compensation will usually be increased by between 10% and 50%.

Acas Code of Practice on Disciplinary and Grievance procedures: where the Code of Practice applies, and there has been an unreasonable failure by the employee to follow it, his compensation may be reduced by up to 25%. Where the employer unreasonably fails to follow it, compensation may be increased by up to 25%.

Indirect discrimination: compensation for discrimination on grounds of sex may only be ordered either if the employer intended to discriminate, or if it would be appropriate to make a declaration or recommendation as well.

Interest: is calculated as simple interest on net losses from the mid-point between the date of the discrimination and the date of the tribunal's assessment (or earlier payment by the employer), at the Special Investment Account Rate, except for injury to feelings which attracts interest over the whole period from act to assessment.

Aggravated damages: will only be appropriate where malice or other bad intention of the discriminator is shown to have caused injury to feelings.

Exemplary damages: are very rare and are intended to punish and deter oppressive, arbitrary or unconstitutional action by agents of government, or conduct calculated to make a profit which may well exceed compensation otherwise payable, to mark the tribunal's disapproval and to deter its repetition.

General financial loss

The aim is to put the injured party in the financial position they would have been in had the discrimination not occurred, based on after-tax earnings but adjusted for tax, mitigation, accelerated receipt etc. There is no need to demonstrate foreseeability. The tribunal will often use statistical information to assess the percentage adjustment to make to reflect the chance that a future event or events would have occurred.

Injury to feelings and personal injury

Damages for injury to feelings are almost always awarded, even though there is no obligation to do so, with the aim of compensating victims for the hurt caused by knowing that they have been treated in a discriminatory way. They should be similar in size to personal injury awards, not defamation awards.

Declarations and recommendations

Declarations are rarely used but may be useful where compensation is inappropriate or some point of principle is involved.

Recommendations can be made that the respondent take action within a specified practicable period to obviate or reduce the adverse effect on the claimant of any act of discrimination to which the claim relates. They cannot be used to recommend that someone gets a pay rise or be given a job. It may be inappropriate to recommend that actions be taken by non-parties, or that apologies be made. Non-compliance can lead to an increase in compensation.