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Sexual Orientation Discrimination

Direct sexual orientation discrimination occurs where there is less favourable treatment of an individual compared with the treatment of another person of a different sexual orientation. 

When establishing the comparison there must be no material difference between the circumstances relating to each case when comparing them.

There are limited circumstances in which an employer is lawfully permitted to give preferential treatment to persons with a protected characteristic, where otherwise such action would have constituted unlawful discrimination.  This is sometimes called Positive discrimination.  Employers would need to be careful to check their legal position before embarking on such course of action as unlawful preferential treatment would be deemed discriminatory.

Indirect sexual orientation discrimination occurs where treatment appears to be neutral and unconnected with sexual orientation, nevertheless it has a disproportionate adverse impact on members of a particular group sharing a particular sexual orientation. 

Harassment occurs when an employer or another person in respect of whose actions an employer will be vicariously liable, engages in any form of conduct related to a protected characteristic such as sexual orientation which has the purpose or effect of violating a workers dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for a worker.  

An employer will normally be liable for harassment where they fail to take reasonable practical steps to protect employees from harassment by third parties where such harassment is known to have occurred on at least two other occasions - although employers will not normally be liable for conduct beyond their control.