• Robert Spicer

Recent Sexual Orientation Discrimination Cases

SEXUAL ORIENTATION DISCRIMINATION

Survivor’s benefits under occupational pension

Case Innospec Ltd v Walker (2014) Eq Opp Rev 247:29, EAT

Facts W joined I’s pension scheme in 1980. He retired in 2003 and received a pension. For some time before his retirement he lived with his male civil partner. If he had been married, his spouse would have been entitled to two-thirds of his pension. Because his service with I was before the law prohibiting sexual orientation came into force, his partner would receive a much smaller amount on his death. W complained of sexual orientation discrimination. The ET upheld his claim. The employer appealed to the EAT.

Decision 1. The appeal was allowed.

2. The prohibition of discrimination on the grounds of sexual orientation was limited by para. 18 of Schedule 9 to the Equality Act 2010, which permits discrimination in relation to a benefit relating to service prior to December 2005 when the Civil Partnership Act 2004 came into force.

SEXUAL ORIENTATION DISCRIMINATION

Burden of proof

Case Chalk v Regal Recruitment Ltd (2014) Eq Opp Rev 247:30, London Central ET

Facts C, a gay man, was summarily dismissed two weeks before the end of his probationary period. He claimed that he had been subjected to a number of offensive remarks about his sexuality and that he had been dismissed after an altercation with a colleague about sexual orientation. C complained of harassment and/or direct discrimination on the grounds of sexual orientation.

Decision In the absence of a credible explanation for the dismissal of an employee, on the balance of probabilities, a dismissal which took place four hours after an altercation with a colleague about C’s sexual orientation, was direct discrimination. The employer could not show that sexual orientation played no part in the decision to dismiss.

SEXUAL ORIENTATION DISCRIMINATION

Limp wrist gestures

Case Callahan v Benchmark Cleaning Services Ltd (2014) Eq Opp Rev 247:31, East London ET

Facts C, a gay man, complained of direct discrimination and harassment related to his sexual orientation. He alleged that his managing director had on a number of occasions said “Hello darling” to C and had used a limp wrist gesture.

Decision 1. The comments and gestures did not amount to harassment because they did not have the purpose or effect of creating a hostile or degrading environment for C. The behaviour did not have a harassive effect on C, who appeared to be happy and content in his workplace.

2. The direct discrimination claim was upheld. The comments and gestures were detrimental to C. The managing director did not use such comments or gestures towards other people.

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