As June is pride month, we thought we’d take this opportunity to write an article on the rights of the LGBT community in the workplace.

Members of the LGBT (lesbian, gay, bisexual, transgender) community are legally protected against discrimination at work through the Equality Act 2010. However, statistics are still showing a large portion of LGBT people are either hiding their identities from their employers or feel unsupported due to experiencing discrimination and bullying at work. Employers can take some clear steps to make a positive impact on the working and personal lives of their LGBT employees or workers by creating an inclusive and supportive workforce.

A joint report was created last year by YouGov and Stonewall to find out just how prevalent discrimination is for LGBT people at work.  Some of the findings are below:

  • 18% of staff had been the target of negative comments or conduct from work colleagues because they’re LGBT;
  • 18% of LGBT people who were looking for work said they were discriminated against because of their sexual orientation and/or gender identity while trying to get a job;
  • 35% of LGBT staff have hidden or disguised that they are LGBT at work in the last year because they were afraid of discrimination;
  • 12% of lesbian, gay and bi people wouldn’t feel confident reporting any homophobic or biphobic bullying to their employer.

For more information on this report and further statistics, you can view it at this link here.

The Government Equalities Commission has published a comprehensive LGBT Action Plan. Following a national survey of 108,000 LGBT people in 2017 action has been promised in several areas based on the findings. The plan aims to “improve the lives of LGBT people” in the UK and includes key actions across health, education, safety, rights and the law, data and monitoring, representation, international and the workplace.  The survey related to the workplace found that “too many LGBT people feel unable to be themselves at work” and produced a number of recommendations for positive action across sectors to “ensure the UK is the best place to work as an LGBT person.” The report can be accessed here where many more statistics and recommendations are presented.

The Equality Act 2010

The Equality Act 2010 sets out nine characteristics which are protected against discrimination (known as the “protected characteristics”) – two of those of relevance here are sexual orientation and gender reassignment.

The Equality Act makes it unlawful to discriminate against employees, job seekers and trainees because of their sexual orientation so there doesn’t need to be an employment relationship in place for discrimination to occur.

The law applies equally whether someone is lesbian, gay, heterosexual or bisexual. It is important to note that an employee is under no obligation to disclose their sexual orientation or gender reassignment information.

The Equality Act distinguishes the different forms of discrimination that can take place. All are illegal in the workplace and an employer has a duty to ensure no one is discriminated against based on their sexual orientation or gender.

Sexual Orientation

Sexual orientation is defined in the following ways:

  • Orientation towards people of the same sex (lesbians and gay men)
  • Orientation towards people of the opposite sex (heterosexual)
  • Orientation towards people of the same sex and the opposite sex (bisexual)

Gender Reassignment

Gender reassignment is defined as someone who proposes to undergo, is undergoing or has undergone a process (or part process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

Individuals making this change are described in the Act as “transsexual” so we will use this term.  However, be aware that different terms mean different things.

“Transsexual” is the legal term describing individuals changing to the opposite gender.  “Transgender” or “trans” are non-legal terms.  These terms have a wider definition and include transsexual people as well as people with non-binary identities (people who do not identify with being either a man or a woman).

It is important to note that the Equality Act only explicitly protects transsexual individuals and not those with non-binary identities.  However, it would be good practice to make any policies and practices inclusive of those with non-binary identities as well.

Types of Discrimination

In relation to the protected characteristics of sexual orientation and gender reassignment, there are four types of discrimination prohibited by the Equality Act 2010.  Those are:

  1. Direct Discrimination;
  2. Indirect Discrimination;
  3. Harassment; and
  4. Victimisation;

Direct Discrimination

This is less favourable treatment because of the protected characteristic.  Direct discrimination is broken down into the following categories within the Act:

  • Actual sexual orientation or gender reassignment (ordinary direct discrimination)
  • Perceived sexual orientation or gender reassignment (direct discrimination by perception) e.g. an employer perceives that someone is gay because they don’t have a girlfriend; or perceives a masculine looking female to have undergone gender reassignment;
  • The sexual orientation of someone with whom they associate (direct discrimination by association) e.g. less favourable treatment because the individual has gay or bisexual friends; or a family member who is transsexual.

Indirect Discrimination

  • Applies where a policy, practice or procedure is applied that disadvantages someone of a particular sexual orientation or a transsexual, without objective justification.

Harassment

  • Situations where unwanted conduct related to sexual orientation or being transsexual has the purpose or effect of violating a person’s dignity or creating a hostile or degrading environment for that person.

Victimisation

  • Described as an employee suffering a detriment because they have made or supported a complaint about sexual orientation or gender reassignment discrimination.

Advice For Employers

An employer has a duty of care to staff and employees. Ultimately an employer should make sure the working environment is an inclusive one for everyone. Some easy to follow tips are below:

  • Have clear policies and procedures in place. Familiarise yourself with them and be confident and proactive in enforcing them. Remember discrimination can be from the stage of recruitment so make sure your recruitment procedure doesn’t allow for any discrimination.
  • Do not use and as far as is possible, do not allow staff to use derogatory language or words about members of the LGBT community. This is often defined as or justified as ‘banter’ but it is not just banter and can be hurtful and can amount to discrimination.
  • Avoid stereotypes.
  • Approach all discrimination complaints seriously whether they are formal or informal.
  • If you witness and suspect discrimination, don’t wait for a complaint or grievance to be raised, deal with it and resolve it before it escalates.

How can we help?

If you have any questions about anything you have read in this article, please do not hesitate to get in touch via adelle@am-employment-law.co.uk or on 01343 569293.