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Sexual orientation discrimination

Overview
The Equality Act 2010 protects people possessing the protected characteristic of ‘sexual orientation’ against unlawful direct and indirect discrimination, harassment and victimisation.

Key points

  • Protection is provided for people with a sexual orientation towards: the same sex (homosexuals); the opposite sex (heterosexuals); both sexes (bisexuals).
  • Direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ sexual orientation compared with others in like-for-like circumstances.
  • Indirect sexual orientation discrimination occurs when a provision, criterion or practice (PCP) puts a person of one sexual orientation at a particular disadvantage compared to others with a different sexual orientation. An employer may be able to justify the PCP as a proportionate means of achieving a legitimate aim.
  • Occupational requirements, where the nature or context of the work require a person to be of a particular sexual orientation, and religious requirements relating to sexual orientation, where employment is for the purposes of an organised religion, can be lawful exceptions to direct and indirect discrimination.
  • Harassment occurs where unwanted conduct related to sexual orientation violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. 
  • Victimisation occurs where a person is subjected to a detriment for carrying out a ‘protected act’ (for example, bringing a discrimination claim).
  • Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’.
Recent developments

Following consultation on the bands of compensation for injury to feelings in discrimination claims, the Presidents of the Employment Tribunals in England and Wales and Scotland have confirmed an increase to the compensation bands.

The three bands of compensation for injury to feelings were identified in Vento v Chief Constable of West Yorkshire Policy (No 2) and were previously adjusted in 2009 by Da’Bell v NSPCC. A 2017 Court of Appeal decision in Pereira de Souza v Vinci Construction UK Ltd confirmed the 10 per cent Simmons v Castle uplift should be applied to the bands. This decision triggered the consultation.

For claims presented on or after 11 September 2017, the bands for compensation for injury to feelings have increased to the following:

  • lower band (for less serious cases, such as one off incidents): £800 to £8,400
  • middle band (for serious cases not within the upper band): £8,400 to £25,200
  • upper band (for most serious cases, such as length campaigns): £25,000 to £42,000

These bands will be reviewed in March 2018 and annually thereafter.