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How to Manage Sexual Orientation in the Workplace

on Friday, 05 April 2019.

Sexual orientation is a common issue in today's workplace. We provide useful tips for nurseries to consider when hiring and managing employees.

What is Sexual Orientation Discrimination?

There are several different ways that discrimination can happen:

  • treating someone less favourably than another because of their sexual orientation
  • having a rule or practice that has a disproportionate and negative impact on employees with a particular sexual orientation
  • treating someone detrimentally because they have raised a sexual orientation issue
  • engaging in unwanted conduct which is related to sexual orientation (for example, name calling or workplace banter) and which violates an employee's dignity or creates an intimidating or hostile working environment

It is important to remember that less favourable treatment does not have to be intentional to be discrimination - "unconscious bias" is a real issue in sexual orientation cases.

It is also possible to discriminate against an employee because they associate with someone of a particular sexual orientation or because of erroneous assumptions about their own sexual orientation.

Legal Protections

The law prohibits discrimination against all types of sexual orientation - gay men, lesbians, bisexuals and heterosexuals. All job applicants, employees and workers are protected from discrimination. Protection will also extend to self-employed contractors who provide their work on a personal basis.

Some religious groups have negative views about homosexuality and this can create difficult issues for employers to manage. After all, both sexual orientation and religious belief are protected under the Equality Act. Every case will need to be looked at carefully, but there is no special protection for those with religious beliefs to express inappropriate views about homosexuality in the workplace. 

But be careful to investigate allegations carefully - in a recent case, a nursery worker who was an evangelical Christian expressed negative views about homosexuality to her fellow nursery worker who was a lesbian. The dismissal of the Christian employee was unfair and discriminatory - whilst the nursery was entitled to take disciplinary action (and potentially dismiss) it had jumped to conclusions without proper investigation. 

What Actions Should Employers Take?

  • Ensure that job adverts focus on the skills, qualifications and experience required for the job and confirm the organisation's commitment to equal opportunities.
  • Only ask job applicants for personal information which is relevant to the job.
  • Have an up to date Equal Opportunities Policy that sets out the support the people will have when raising issues and the process they must follow.
  • Make it clear that Senior Management team supports the policy.
  • Provide managers with relevant training on issues relating to sexual orientation and unconscious bias.
  • If a complaint is received, follow your processes and don't jump to conclusions.
  • Being aware of useful information around sexual orientation, such as 'ACAS sexual orientation discrimination: key points for the workplace' guide and 'EHRC Employment Statutory Code of Practice'.

For more information, please contact Michael Halsey in our Employment Law team on 020 7665 0842.

 

This article first appeared in Nursery World.

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