Sex or Sexual Orientation Discrimination

Direct Sex or Sexual Orientation Discrimination (S 13)

Note: Direct Discrimination cannot be justified under any circumstances save when the Protected Characteristic is Age.

S13 provides that a person (A) discriminates against another (B) if:

• Because of sex or sexual orientation;
• A treats B less favourably than A treats or would treat others.

Note:

• Motive is irrelevant (there need be no conscious motive on the part of the discriminator);
• There is a distinction between unfavourable treatment (where an Employee is treated badly) and less favourable treatment (where other Employees receive better treatment even though the circumstances are not materially different).
• The legislation provides for a comparative test, so the Employee must point to another Employee who was treated more favourably in similar circumstances. So if the Employer would have treated all the employees badly, they will not have normally been found to have been discriminated against.
• The comparison between the Employee and a Comparator to be relied upon must be comparing “like with like”; as such the relevant circumstances of the 2 cases must be the same or not materially different;
• The Comparator can be “actual” or “hypothetical” in the sense that the Employer would have treated another unnamed Employee more favourably. If there are actual Comparators, it is usually prudent to rely upon both actual and hypothetical Comparators, in the alternative.

Associative Sexual Orientation Discrimination

There is no longer a need in Direct Discrimination for B to actually possess the prohibited characteristic themselves allowing “Associative Discrimination” as a wholly new concept. So, the Act covers less favourable treatment by A of B on the grounds of another person’s (C’s) protected characteristic.

Under Associative Discrimination, the victim of discrimination need not possess the protected characteristic. For example, a less favourable treatment of B by A because A believes B is gay is still protected even if B is not gay. Further, homophobic bullying even though the perpetrators knew that their victim was not gay is protected.

Indirect Sex or Sexual Orientation Discrimination (S 19)

Indirect Sex or Sexual Orientation Discrimination looks beyond formal equality towards more substantive equality of results. For example, criteria that appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origin. Essentially this looks at the discriminatory impact of ostensibly neutral requirements.

A person A discriminates against another B if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.

A PCP is discriminatory in relation to a relevant protected characteristic of B’s if A applies, or would apply, the PCP to persons with whom B does not share the characteristic, but:

• (a) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; and
• (b) It actually puts, or would put, B at that disadvantage; and
• (c) A cannot show the PCP to be a proportionate means of achieving a legitimate aim.

Note:

• Tribunals must determine the group of persons or “pool” for comparison.
• As with Direct Discrimination, there must be no other material difference between the circumstances relating to the pool of people who share the characteristic in issue with B and those who do not share the characteristic.
• The pool for comparison must be those who have an interest in the advantage or disadvantage in question.
• Only covers those who would be put at a disadvantage personally – so you cannot complain about a potentially discriminatory PCP if you don’t suffer any personal disadvantage yourself.
• It is not necessary that the Complainant cannot comply with the PCP only that they are put to a particular disadvantage;
• The Complainant must be part of a group who are disadvantaged (so not enough if only the Complainant is disadvantaged;
• “Provision” includes contractual provisions and non-contractual policies; “Criterion” includes a selection for appointment, promotion or dismissal. “Practice” is wider and enables the Tribunal; to look at what happens on the ground.

Indirect Discrimination – Justification (Defence of)

Indirect Discrimination can be justified (unlike Direct Discrimination (save when the PC is age)) if it is shown to be a proportionate means of achieving a legitimate aim.

• Whether the measure has a legitimate aim. The aim must not itself be discriminatory. This is a question of fact in each case. Include: rewarding loyalty, encouraging better access to employment, achieving a stable workforce;
• Whether the measure is capable of achieving that aim;
• Whether having regard to all factors including the possibility of achieving that aim by other or lesser means, the measure is proportionate. The Tribunal must balance the discriminator effect of the measure against the legitimate aim. This is not necessary when the legitimate aim is the protection of fundamental rights.

Note:

• It is not necessary to establish that there was no alternative to the PCP that was applied but the PCP has to be justified objectively notwithstanding its discriminatory effect.
• The principle of proportionality requires a Tribunal to take into account the reasonable needs of the business but it has to make its own judgement upon a fair and detailed analysis of the working practices and business considerations involved as to whether the proposal is reasonably necessary.

Harassment because of sex or sexual orientation

The section applies to all protected characteristics excluding “pregnancy and maternity” and marriage/civil partnership.

Unlike Direct Discrimination – there is no need for a Comparator.

Three forms of harassment are covered s26 (1) to (3):

Harassment occurs where A engages in:

• 1. Unwanted conduct related to a relevant protected characteristic S26(1);
• 2. Unwanted conduct of a sexual nature (S26(2));

And the conduct has the purpose or effect of either:

• Violating B’s dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

OR:

• 3. Harassment occurs where A or another person engages in unwanted conduct of a sexual nature that is related to gender reassignment or sex and the conduct has the purpose or effect of either s26(3):
• Violating B’s dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

And because of B’s rejections of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted t the conduct.

Note:

• It is not necessary for B to possess the relevant characteristic;
• It is not necessary that A knew B to have the relevant characteristic (so could cover mistaken belief).

In deciding whether the conduct in question has the effects referred to, one must have regard to (S26(4)):

• The perception of B;
• The other circumstances of the case and;
• Whether it is reasonable for the conduct to have that effect.

Victimisation because of sex or sexual orientation

There is no need for a Comparator.

A victimises B if A subjects B to a detriment because:

• (1) B actually does a protected act; or
• (2) A believes that B has done, or may do, a protected act.

Protected acts include:

• Bringing proceedings under the Equality Act;
• Giving evidence or information in connection with proceedings under the Equality Act;
• Doing any other thing for the purposes or in connection with the Equality Act and;
• Making an allegation (whether or not express) that A or another person has contravened the Equality Act. This includes reference to committing a breach of an equality clause or rule.

Note: Giving false information or making false allegations is not a protected act if given or made in bad faith.

Making an Employment Tribunal Claim for Sex or Sexual Orientation Discrimination

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