1. Introduction
The sexual orientation ground under Section 6(2)(d) of the Employment Equality Acts 1998 to 2015 protects employees from discrimination by reason of their heterosexual, homosexual or bisexual orientation.
This article considers the scope of the protection, the limited statutory exceptions, and the practical issues that arise in relation to dress codes, conduct policies and treatment by colleagues.
2. Legislation and Case Law
Section 6(2)(d) defines the sexual orientation ground as covering treatment that occurs because one person has a different sexual orientation than the other. The protection applies equally to heterosexual, homosexual and bisexual orientations.
Section 37 of the Acts, as amended by the Equality (Miscellaneous Provisions) Act 2015, significantly narrowed the religious ethos exception. Religious institutions can no longer rely on Section 37 to discriminate on sexual orientation grounds in relation to general employment, although limited exceptions remain in relation to roles directly concerned with religious teaching or ethos.
The Court of Justice in Coman v Inspectoratul General pentru Imigrari C-673/16 confirmed the principle that the freedom of movement of EU workers and their spouses extends equally to same-sex married couples, supporting the broader European framework against sexual orientation discrimination.
Article 1 of Directive 2000/78/EC prohibits discrimination on grounds of sexual orientation in employment and occupation, and Article 4 permits only narrow occupational requirement exceptions.
3. Decision
The WRC will examine whether the less favourable treatment complained of was influenced by the complainant’s sexual orientation, applying the Section 85A burden of proof framework.
In harassment complaints, the question is whether the conduct violated the complainant’s dignity or created an intimidating environment by reason of sexual orientation. The standard is objective: the WRC considers whether a reasonable person would consider the conduct to have that effect.
Compensation up to two years’ remuneration may be awarded under Section 82(4), and the WRC may direct the employer to take specified steps to prevent recurrence.
4. Takeaway
Employers should ensure that anti-discrimination policies explicitly address sexual orientation and that training is provided to managers and staff. Dress codes, social events and informal workplace cultures should be reviewed for inadvertent disadvantage to LGBT+ employees.
Complainants should document the conduct, identify witnesses where possible, and engage with internal procedures before lodging a WRC complaint, while preserving evidence of how those procedures were applied.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
