Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
Find up-to-date guidance on points of law and then easily pull up sources to support your advice with Lexis PSL
Check out our straightforward definitions of common legal terms.
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Access our unrivalled global news content, business information and analytics solutions
Insurance, risk and compliance intelligence using big data, proprietary linking and advanced analytics.
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
Discuss the latest legal developments, ask questions, and share best practice with other LexisPSL subscribers
mark LGBT history month, Joanne Davies, partner in the employment law team at Blake Morgan, explains the importance of sexual orientation acceptance and how employers can take steps to prevent any potential discrimination.
There is no doubt that diversity is good for business. A diverse workforce provides a wide range of individual skills and perspectives and a broad understanding of service users and clients.
But are there benefits for the individual? According to the 2013 Stonewall report Gay in Britain, 19% of lesbian, gay and bisexual employees had experienced verbal bullying from colleagues, customers or service users because of their sexual orientation
in the last five years. 26% felt unable to be open with colleagues about their sexual orientation. Because of concerns about people’s reactions, some individuals are reluctant to disclose their sexual orientation at work but hiding it can be
stressful and isolating. This can have an impact on health and well-being.
It is Stonewall’s view that if people are able to be themselves at work and are open about their sexual orientation they will perform better and feel more included and engaged.
Being committed to equality and diversity as an employer is not simply about legal compliance but being a model employer and employer of choice. This will be beneficial to current staff and will also help in the retention of staff and future recruitment.
The Equality Act 2010 (EqA 2010) prohibits discrimination, harassment and victimisation in relation to nine ‘protected characteristics’ one of which is sexual orientation. EqA 2010 defines sexual orientation as orientation towards:
It is essential that the recruitment process is carried out fairly and free from discrimination and bias (whether conscious or unconscious) so that the successful candidate is chosen on merit.
An employer may use an equality and diversity monitoring form as part of the recruitment process and this may ask about sexual orientation. There is no obligation to answer that question and, in any event, the form should be kept separate from the candidate’s
application form. This will mean that the information has not been taken into account during the shortlisting stage.
Consequently, unless a candidate mentions it at their interview, the interviewers are unlikely to know of the candidate’s sexual orientation. If they do learn about it, they need to ensure that they don’t discriminate against or treat the
candidate less favourably because of their sexual orientation. The interviewers should not ask the candidate any questions of a personal nature which are unrelated to role.
It is also important to remember that EqA 2010 covers discrimination by ‘association’ and ‘perception.’ For example, someone may mention at an interview that they have a lesbian daughter and are not recruited for this reason. This
would be discrimination by association with someone who has a protected characteristic. In terms of discrimination by perception, the interviewers may mistakenly make assumptions about a candidate’s sexual orientation because of their appearance.
An employer is vicariously liable for the acts of its employees during the course of their employment. To reduce the risk of liability for any discriminatory recruitment processes, employers should have in place an equal opportunities policy and ensure
that all staff involved in recruitment have received training on equality and diversity. This will help to show that all reasonable steps have been taken to prevent discrimination occurring. To try and avoid unconscious bias, interviews should be
carried out by more than one person and reflect diversity.
An individual should not be discriminated against in relation to the terms and conditions of employment such as salary, pensions and health insurance. Similarly, access to training and promotion opportunities should not be limited or denied on the grounds
of someone’s actual or perceived sexual orientation or association with someone of a particular sexual orientation.
A good starting point is to ensure that policies and procedures are inclusive of lesbian, gay and bisexual staff. This doesn’t mean just having an equal opportunities policy. For example, all the family friendly policies such as maternity, adoption
and shared parental leave for example, should make it clear that they include lesbian, gay and bisexual staff.
The organisation should make it known that bullying and harassment because of sexual orientation is a disciplinary matter and will not be tolerated. Staff should be informed that any complaints will be investigated promptly and thoroughly and dealt with
Monitoring diversity and equality can be difficult especially in smaller organisations. Many people are reluctant to disclose personal information about their sexual orientation, religion or disability for example and there is no requirement to answer
these questions. The best approach for employers is to explain that the information provided is strictly confidential and is to be used only for monitoring purposes.
Finally, employers can become a Stonewall Diversity Champion (see the website for more details).
There is extensive guidance available including the comprehensive Employment Statutory Code of Practice produced by the Equality and Human Rights Commission which provides practical advice on complying with EqA 2010 and avoiding discrimination in recruitment.
Acas has useful guidance entitled, ‘Sexual orientation discrimination: key points for the workplace’.
Stonewall also has extensive resources on its website covering topics such as discrimination, parenting rights, best practice guides and details of its current campaigns.
Perhaps one of the most challenging issues for employers is handling conflicting rights in the workplace, for instance, between individuals who have certain religious beliefs and who hold particular attitudes about homosexuality. These situations need
to be handled sensitively and the rights of both parties need to be balanced.
After many years of litigation, in January 2013, the European Court of Human Rights held in Ladele and McFarlane v the United Kingdom (App no 51671/10)  ECHR 737 (these cases related to the provision of services) that while the right to manifest
religious belief at work is protected, that right must be balanced against the rights of others. If someone participates in discriminatory behaviour or harassment because they hold strong religious beliefs it will be difficult for them to rely on
those beliefs if the consequence is other individuals suffering discrimination as a result.
Lexis®PSL subscribers can enjoy expert guidance on numerous topics, such as this one. If you are not a subscriber, you can take a free trial of Lexis®PSL here.
Joanne Davies is a partner in the employment law team at Blake Morgan LLP, with offices in Cardiff, Southampton, Oxford, Reading, Portsmouth and London. Blake Morgan is a diversity champion.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Free trials are only available to individuals based in the UK
* denotes a required field
0330 161 1234