Q&A: Homophobia and sexual harassment at work
Got a problem with homophobia or sexual harassment at work? Law firm Russell Jones & Walker answers three common questions about how the law protects you and what you can do.
I am gay and feel uncomfortable at work as my boss (who is also gay) keeps making sexually inappropriate comments towards me and is very tactile around me in the office. I confronted him about it and he told me that I was just being sensitive. Is there anything that I can do as I would like him to stop behaving that way?
This appears to be harassment of a sexual nature and is therefore prohibited under the Sex Discrimination Act (SDA), which applies throughout Great Britain. Sexual harassment is unwanted conduct of a sexual nature and does not require the harasser to be of a different sex.
However, it may also be harassment under the Sexual Orientation Regulations (in England, Scotland and Wales). You should raise a formal complaint in the form of a written grievance. If your employer fails to deal with the grievance appropriately and in accordance with any company policies on grievances and harassment, you may wish to seek legal advice with the ultimate aim of bringing a claim for harassment under the regulations and sexual harassment under the SDA .
Since there is no longer any strict legal requirement preventing you from bringing the claim before following a grievance procedure (although this is good practice under the ACAS code) you should bear in mind that you have three months from the last act of discrimination/harassment to bring a claim and may be penalised by a reduction in compensation should you fail to engage with your employer’s grievance procedure.
Any delay by the company in dealing with your grievance does not and should not prevent you from issuing your claim before the three-month deadline.
My colleagues at work know that I am heterosexual but a few of them persist in making homophobic jokes around me which I believe are directed at me. I told my boss that I find these jokes offensive and he told me that it was just office banter and I should be more of a team player. Is there anything I can do about this?
The Sexual Orientation Regulations prohibit discrimination and harassment on the grounds of sexual orientation. A Court of Appeal decision has extended this protection to a heterosexual person who is subjected to “homophobic banter” even when his fellow employees are aware that he is not gay. This means that you should not have to put up with such behaviour and excuse it as “office banter”.
As your boss does not appear to be taking your informal complaint seriously, you should make a formal complaint in the form of a written grievance. If your employer fails to deal with the grievance appropriately and in accordance with any company policies on grievances and harassment, you may wish to seek legal advice with the ultimate aim of bringing a claim for harassment under the regulations.
Since there is no longer any strict legal requirements preventing you from bringing the claim before following a grievance procedure (although this is good practice under the ACAS code) you should bear in mind that you have three months from the last act of discrimination/harassment to bring a claim and may be penalised by a reduction in compensation should you fail to engage with your employer’s grievance procedure. Any delay by the company in dealing with your grievance does not and should not prevent you from issuing your claim before the three-month deadline.
My boss found out that I was having an affair with my colleague and soon after dismissed me for alleged performance issues. My colleague and I are both gay and I think I have been dismissed because of the relationship – is there anything I can do about this?
If you believe that the true reason for your dismissal is that you are gay and had an affair with another gay person and that your employer would not have dismissed a heterosexual person for having an affair with someone from the opposite sex, then you may have been subjected to direct discrimination on the grounds of your sexual orientation.
You should appeal your dismissal in writing and set out clearly your reasons for appeal i.e. you do not believe your performance was bad enough to justify dismissal, your belief that you have been treated this way because you are gay and had an affair and you may also need to complain about the procedure if this was not followed properly.
As you are challenging your dismissal on performance grounds, you will need to show that you had a good performance record or at least that you had not previously been alerted to problems with your performance by reference to your appraisals or any other records of your performance. If you are unsuccessful in appeal, then you may wish to seek legal advice with a view to pursuing a claim for direct discrimination.
This type of claim may be difficult to prove as it goes to your boss’ motive and you should bear in mind that in the first instance you would need to show sufficient evidence so that the Tribunal could properly conclude that there had been discrimination, which is why the performance evidence and any other examples of discriminatory behaviour by your boss would be crucial. The time limits to bring a dismissal claim is within three months of the date of dismissal/act of discrimination.
This information is for general guidance only and should not be treated as a definitive guide or be regarded as legal advice. If you need more information of details of the matters referred to on this site please seek independent formal legal advice.
