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Sexual orientation in the workplace

June 2005

Definitions and examples
The following section is aimed at doctors in their capacity as employers, managers and members of teams, as well as at other healthcare practitioners. It includes definitions and examples of direct and indirect discrimination, harassment, bullying and victimisation as they are set out in the Employment Equality (Sexual Orientation) Regulations 2003, as well as case studies illustrating instances where doctors have experienced discrimination on grounds of sexual orientation.

Definition of sexual orientation
In these Regulations, ‘sexual orientation’ means a sexual orientation towards:
- persons of the same sex;

- persons of the opposite sex; or

- persons of the same sex and of the opposite sex. [Go to reference 5]

Direct discrimination
Direct discrimination occurs when an individual has been treated less favourably than others based on characteristics other than personal merit. It is unlawful to treat someone less favourably because of their sexual orientation or their perceived sexual orientation. Deciding not to employ or promote someone; dismissing someone; providing adverse terms, conditions or benefits (unless they are based on marital status) and refusing to provide a member of staff with training – based on sexual orientation or perceived sexual orientation – are all discriminatory.

Direct discrimination: an example
A manager is approached by someone from another organisation. He says that Ms A has applied for a job and asks for a reference. The manager says that he cannot recommend the worker, as other staff did not accept her because she was bisexual. This is direct discrimination because of sexual orientation. [Go to reference 5].

Indirect discrimination
Indirect discrimination occurs when an individual is subjected to a particular provision, criteria or practice, which disadvantages a particular group compared to others in the same circumstances. Organisations need to ensure that systems do not disadvantage people of a particular or perceived sexual orientation.

Indirect discrimination: two examples
Where the owner of a pub advertises for ‘a married couple’ to manage the business, this could be indirectly discriminatory on grounds of sexual orientation as gay and lesbian partners cannot marry. [Go to reference 42].

An employer operates an informal policy whereby employees with children are given the first choice as to whether or not they want to take annual leave at Christmas, New Year and Easter. If the employees with children do not want to take leave at these times, other employees are then given the option of applying for leave. An employee who is gay complains that he has to work over the Christmas period because employees with children have been given preferential treatment as regards the taking of annual leave at this time. As it might be possible to show that same-sex partnerships are less likely than heterosexual partnerships to have children, such an informal policy may have the potential to be indirectly discriminatory on grounds of sexual orientation and therefore might be subject to ‘objective justification’. [Go to reference 43].

The BMA report Career barriers in medicine: doctors’ experiences (2004) [Go to reference 1] illustrates cases of indirect discrimination. For example, one interviewee commented that ‘certainly when I moved here it wasn’t recognised that I had a partner and that had to be taken into consideration, as I was offered single accommodation’.

Harassment and bullying
Harassment refers to any conduct or comment, which is unreasonable, unwelcome or offensive and causes the recipient to feel threatened, humiliated or embarrassed, either intentionally or unintentionally. Bullying is the aggressive misuse of power and/or position. It may include behaviour that criticises, condemns and/or humiliates people and can undermine their ability and confidence. Organisations may be held responsible for their employee’s conduct and may be ordered to pay compensation unless they can show that they have taken reasonable steps to prevent harassment and bullying in the workplace.

The NHS Zero Tolerance Campaign was established specifically to confront violence against NHS staff. [Go to reference 44]. Its focus is to educate the public, and NHS staff, that violence towards NHS employees is unacceptable and will be reported. Patients exhibiting violent and abusive behaviour against NHS staff may ultimately be refused care. NHS Scotland has developed a Zero Tolerance Campaign Resource Pack to eliminate intimidation and violence within the NHS in Scotland. The pack contains seven resource sheets covering information such as legal issues, prevention and management, advice, and good practices. It includes:

- health and safety responsibilities

- police involvement

- prevention and management

- victim support

- good practice

- further information. [Go to reference 45].

Harassment and bullying: two examples
A female employee who is a lesbian receives an email from a work colleague that contains a joke about lesbians. The joke implies that lesbians are promiscuous and a danger to children. The female employee is highly offended by the joke. The sending of such an email is likely to amount to harassment regardless of whether or not the employee who sent it intended to cause offence. [Go to reference 43].

A worker has a son who is gay. People in the workplace often tell jokes about gay people and tease the worker about his son’s sexual orientation. This may be harassment on grounds of sexual orientation, despite it not being the victim’s own sexuality that is the subject of the teasing. [Go to reference 5].

The BMA report Career barriers in medicine: doctors’ experiences (2004) [Go to reference 1] exposed some cases of what could be described as harassment and bullying:

‘My senior partner in the practice was very homophobic. Made jokes about homosexuals in front of me, and made disparaging comments about gay patients. I contacted a gay organisation to offer my services, and details were sent to him as senior partner. He told the other partners that it would adversely affect the reputation of the practice, but did not confront me. I had to bring the subject up with him, and reluctantly agreed to withdraw my name from the organisation’s database’.

‘When I started medical school I said I wanted to do paediatrics and people said, “you can’t because you are a gay man”’.

Victimisation
Victimisation occurs if an individual has been treated less favourably because they have complained about discrimination or supported someone else who has.

Victimisation: an example
A worker gives evidence for a colleague who has brought an employment tribunal claim against the organisation for discrimination on grounds of sexual orientation. When that worker applies for promotion her application is rejected even though she is able to show she has all the necessary skills and experience. Her manager maintains she is a ‘troublemaker’ because she had given evidence at the tribunal and therefore should not be promoted. This would be victimisation. [Go to reference 5].