Created on: 31 Jul 2023 | Last modified: 09 Nov 2023

Employers are liable for acts of harassment by their employees if they have failed to take all reasonable steps to prevent it happening, for example, by failing to put in place adequate policies and provide training to staff that makes clear that such behaviour will not be tolerated.

The Equality Act makes employers potentially liable for harassment by people (third parties) who are not employees, such as pupils, students or parents. Harassment may take place within a face-to-face or social media context.

Employers will only be liable when harassment has occurred on at least two previous occasions (it doesn’t have to be the same third party), the employer was made aware of those two previous occasions and failed to take reasonable steps to prevent it happening again.

As in other areas of discrimination, protection begins from the first day of appointment to a job and in the recruitment, selection and interview process. Protection continues throughout the employment period. There should be no detriment on the grounds of sexual orientation or gender identity in access to and procedures for promotions or transfers, training or receiving any other benefit.

LGBT members, however, should be aware of the need for Catholic approval in relation to securing any post in a denominational school. Members need not be Roman Catholic to acquire approval but require to be judged to meet appropriate criteria in relation to character and belief and their consistency with the Charter for Catholic Schools in Scotland.

An employer may argue that an employee must be of a particular sexual orientation if it can be shown that this is a genuine and determining occupational requirement of the post to be filled. It is envisioned that the circumstances where this will happen will be rare.

It is unlawful in certain circumstances to discriminate against a former employee after the employment relationship has ended e.g. by not providing a reference. Once an employment tribunal or court is satisfied from the facts that there is a case to answer, the burden of proof is on the employer to show that the difference in treatment was justified.