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15 Equal Opportunities
6. Discrimination because you are gay or lesbian
Under new regulations, called the Employment Equality (Sexual Orientation) Regulations 2003, it is unlawful to discriminate against you at work because of your sexual orientation or sexual preference. The new regulations also cover work- related training.
The regulations say it is unlawful to discriminate against you because you are (or people think you are) gay, lesbian, heterosexual or bisexual. This includes:
The law on equality talks about two types of discrimination:
Also, an employer may not discriminate or victimise you after you have left your job.
Benefits for same sex-partners
If an employer gives benefits, such as insurance or private health care, to heterosexual unmarried partners, then refusing to give the same benefits to same-sex partners would be discrimination.
However, employers do not have to provide benefits that are specially for married couples to gay couples. Yet both kinds of couple should get the same parental or adoption leave, if they are entitled to it.
Time off to deal with emergencies
Under the Employment Rights Act 1996, you are entitled to unpaid leave to deal with unexpected or sudden problems concerning close family members, or people who depend on you. This includes a same-sex partner.
When an employer is allowed to discriminate
In some circumstances, an employer is allowed to discriminate if it is a ‘genuine occupational requirement’ that the jobholder must be of a particular sexual orientation. For example, in some cases, it may be lawful for an organisation providing welfare services to lesbian, gay and bisexual people to insist on some workers being of a particular sexual orientation.
It is important that each post is considered separately. An employer may not claim a genuine occupational requirement unless the work must be done by someone of a particular sexual orientation, not just because the employer would prefer it.
Also, an employer may not claim a genuine occupational requirement if they already have enough employees who can do those parts of the job that need someone with a particular sexual orientation. For example, if only a small part of the job qualifies for a genuine occupational requirement, then the work or jobs could be changed so that a genuine occupational requirement is not applied to a particular post.
To make sure it is still valid, a genuine occupational requirement should be looked at each time a post becomes vacant.
Harassment because of your sexual orientation
Harassment is unwanted behaviour that:
It may be targeted at you because of your sexual orientation or it may be part of the general culture in your work place which, for example, tolerates anti-gay jokes and teasing. Harassment can be subjective (in other words, based on opinion), but an employer must ask themselves: Could what has happened be reasonably considered to have caused offence?
You do not have to be lesbian, gay or bisexual to be harassed at work. For example, you may be heterosexual but people think you are gay, and they often tease and call you nicknames that you find humiliating and upsetting. This is harassment, even though you are not gay.
The regulations also apply even though it is not your own sexuality that is the subject of the harassment – for example, if you have a son who is gay, and you are often teased at work about this. This may be harassment even though your sexual orientation is not the subject of the teasing.
Employers may be held responsible for the actions of their staff as well as the staff being individually responsible, unless it can be shown that the employer took all reasonable steps to prevent the harassment from taking place.
People with HIV or AIDS
If you have HIV or AIDS, you may face discrimination. Whether or not you are gay, you may have protection under the Disability Discrimination Act. For more information, see the Community Legal Services Direct leaflet ‘Rights for Disabled People’.
Leaflet Version: December 2019