What is direct discrimination for LGBT employees?
Direct discrimination refers to situations where someone is treated less favourably than someone else because of their sexual orientation or gender identity, their perceived sexual orientation or gender identity, or the sexual orientation or gender identity of someone they are close to. This may include a friend, relative or colleague.
Under the Equality Act 2010, an employer cannot refuse a job, promotion or any training opportunity to an employee on the basis of their sexual orientation or their gender identity.
Employee benefits and salary
Direct discrimination can be measured by comparing the situations of two employees. These employees should be in comparable situations except that one is lesbian, gay, bi or trans and the other is not.
Under the Equality Act 2010, an employer cannot offer different employee benefits or treat staff differently on the basis of their sexual orientation or gender identity. When comparing the two employees, it should be possible to show that both receive comparable benefits, opportunities and that workplace policies are being applied equally.
For example, if heterosexual staff are able to talk openly about their personal lives and can invite their partners to work events or work related activities then there should be no reason why a lesbian, gay, bi or trans employee cannot be open about their personal life.
In addition to this, any privileges offered on the basis that an employee is married must extend to same-sex married couples and those in civil partnerships. All employers, regardless of how many people they employ, should work to ensure their policies and procedures are inclusive and the language used within them reflects this.
The only time it would be possible for an employer to refuse a job or promotion on the basis of an employee's sexual orientation or gender identity is when there is a reason why, considering the nature or context of the work, being of a particular sexual orientation or gender identity is an occupational requirement.
There will be very few cases where an occupational requirement exception could be used. An employer would usually have sought legal advice before including a genuine occupational requirement as part of a role description. They would need to include these details in the initial application information.
Positive action refers to rules that allow an employer to offer a job to an individual on the basis of a protected characteristic, such as sexual orientation or gender identity. These rules in recruitment are very strict. It is only justified when an employer has two candidates of equal merit, and can show that a particular group is underrepresented in the workplace or faces a particular disadvantage in it.
To justify such a decision, the employer would need to carefully monitor diversity in the workplace and engage in positive action on a case by case basis. A blanket policy of recruiting from particular groups would be unlawful.
Direct discrimination and religious organisations
A religious organisation may be able to specify that an applicant must be heterosexual or should not be trans, as long as it can clearly show that allowing someone who is LGBT to take that particular role would go against the doctrines of that religion, or against the strongly held views of a significant number of the religion's followers.
There are very few roles that would satisfy these criteria and it would only be applicable to job roles requiring an individual to teach or advocate these convictions, such as a priest.