Discrimination based on sexual orientation takes place when someone is discriminated against, victimised or harassed on the basis of their sexual preference. The Equality Act 2010 definition of sexual preferences includes homosexuality, bisexuality or heterosexuality. It does not appear to cover any other sexual practices such as sado-masochism, or celibacy.
There are four types of sexual orientation discrimination:
- Direct discrimination: This is less favourable treatment because of sexual orientation. For example, a more qualified man does not get the role because he referred to his boyfriend during a job interview.
- Indirect discrimination: This can occur when an employer applies a policy, practice or procedure to all workers which particularly disadvantages a group of workers who are of the same sexual orientation. An example of this could be a policy for maternity/paternity leave which does not apply to same-sex couples.
- Harassment related to sexual orientation: Sexual orientation harassment can occur when unwanted conduct related to sexual orientation has the purpose or effect of violating someone’s dignity or creating an intimidating, humiliating, hostile or offensive environment. It could be a verbal or written comment about someone’s sexuality, making a ‘joke’ which refers to sexual orientation, exclusion from conversations or activities or violence.
- Victimisation: Victimisation occurs when someone is subjected to a detriment because they have made a complaint or raised a grievance about discrimination (or they intend to) or because they are assisting someone else who has complained about discrimination for example by giving evidence in proceedings (or they intend to). Examples of victimisation include dismissing, passing over for promotion or not giving a bonus to an employee because that employee has submitted a complaint about discrimination
Compensation for discrimination is uncapped, meaning the Tribunal can award a substantial amount. The compensation can take into account financial losses and ‘injury to feelings’, intended to compensate the victim for the stress and anxiety suffered as a result of the employer’s unlawful acts of discrimination. The amount of an award may be increased if the employer has acted in a particularly malicious manner.
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