The latest on sexual orientation discrimination in the workplace

Despite regulation, discrimination and harassment claims on the grounds of sexual orientation remain a key issue for employers, says Adam Penman

In the UK, discrimination on the basis of sexual orientation is prohibited under section 12 of the Equality Act 2010. Employer attitudes towards, and practices in tackling, sexual orientation discrimination have evolved significantly over the last decade. Now, for example, it is almost an expectation for employers across the UK to reinforce their commitment to diversity and inclusion in the workplace during Pride month in June.

However, despite legislative and corporate social progress, discrimination and harassment on grounds of sexual orientation remains prevalent in the workplace and a risk issue for employers. 

DeltaNet International, which analysed data from the Ministry of Justice (MoJ), revealed that discrimination cases had increased to around 500 cases in 2019-2020 and sexual orientation discrimination cases had risen by 165 per cent over five years. According to the MoJ, the median award given by an employment tribunal for discrimination claims based on sexual orientation was £27,936. 

P Allen v Paradigm Precision Burnley Ltd and Carl Wheeler (2020)

In this case, an engineer was awarded £174,645 by an employment tribunal for the way he was treated after revealing he was gay. Mr Allen was due to be promoted at work and around the same time, had made enquiries of his employer and HR director about taking adoption leave because he and his partner were considering adopting a child. Allen was told that the company he worked for could not have a manager who would be absent for 12 months for parental leave.

Additionally, following the disclosure of his sexual orientation to the HR director, Allen’s sexual orientation became common knowledge at work and he was subsequently subjected to homophobic comments and unsolicited intrusive questions about his private life, including by senior managers. 

Allen resigned and successfully claimed constructive unfair dismissal, direct sexual orientation discrimination, harassment relating to sexual orientation, victimisation and detrimental treatment for seeking to take additional adoption leave.

Action points for employers 

The case reminds employers of the importance of treating staff with dignity and respect and to adhere to clearly laid-out procedures. 

Employers should be proactive in their support to LGBTQ+ staff to mitigate risks of grievances and/or tribunal claims, including but not limited to the following.

  1. Employers can be vicariously liable for discriminatory acts by their workers, which can include discrimination which occurs outside working hours. Employers can defend such liability if they can demonstrate that it took all reasonable steps to prevent discriminatory acts, which as a first step would include implementing and regularly reviewing anti-discrimination and harassment policies.
  2. Training staff to adhere to those policies and to identify behaviours which could be seen by some as friendly interactions and by others as intrusive or harassment (such as asking personal questions about one’s sexuality).
  3. Developing support programmes for LGBTQ+ employees. For example, employee networking groups, and mentoring initiatives can support inclusivity and foster ‘safe spaces’ for LGBTQ+ engagement.
  4. Promote visibility of LGBTQ+ employees and allies in the workplace. 
  5. Reviewing and updating family friendly policies to ensure they are inclusive of LGBTQ+ needs. Employers can and should seek consultation on those policies to improve the quality and representativeness of them.

Adam Penman is an employment lawyer in the London office of international law firm, McGuireWoods