Created on: 31 Jul 2023 | Last modified: 09 Nov 2023
There are four forms of discrimination that are prohibited by the Act.
Direct discrimination consists of treating a person, on the grounds of any of the protected characteristics, within which sexual orientation and gender identity are included, less favourably than others are or would be treated in the same or similar circumstances. Direct discrimination claims can be brought by people who have been treated less favourably because of their own sexual orientation or gender identity, because they associate with someone of a particular sexual orientation or gender identity, or because they are wrongly perceived to be of a particular sexual orientation or gender identity.
Indirect discrimination is more complex. Indirect discrimination can occur when there is a condition, rule, policy or even a practice in your workplace that applies to everyone, but particularly disadvantages people who are of a particular sexual orientation or gender identity. Indirect discrimination can be defended if the person or organisation can show that it was a proportionate means of achieving a legitimate aim. A ‘legitimate aim’ might be any lawful decision a person makes; being ‘proportionate’ means being fair and reasonable.
Victimisation occurs if a person is treated less favourably because they have made or supported a complaint under the Equality Act in relation to a protected characteristic such as sexual orientation or gender identity, or because they are suspected of doing so. An example of victimisation would be an employer providing a bad reference for an ex-employee because she/he has complained of discrimination. It should also be noted that the protection does not apply if a false allegation of discrimination or harassment was maliciously made or supported against an employer.
Harassment is when there is conduct in the workplace that is related to sexual orientation or gender identity that has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. For example, it may take the form of homophobic language, verbal abuse, graffiti, malicious gossip or ‘outing’ someone at work when it has not been their choice to disclose details of their sexuality or gender identity in the workplace. It is not necessary for the conduct to be related to the victim’s personal characteristics; it could be related to the personal characteristics in relation to gender identity or sexuality of someone that they associate with, or a misperception of the perpetrator that the victim is of a particular sexual orientation or gender identity. It does not matter whether the harasser intended their behaviour to be offensive- the effect is just as important. So-called ‘banter’, which is homophobic in nature, constitutes harassment. Harassment does not have to be targeted at any particular person. It is enough that someone who witnesses the conduct finds it offensive.
For example, a heterosexual teacher overhears frequent homophobic remarks from colleagues/pupils/students and this creates an offensive working environment for her/ him, constituting harassment.