Are You Suffering Discrimination Due To Your Sexual Orientation Or Gender Reassignment?19th Feb 2021
LGBT+ Employees’ Discrimination Fears
Being able to be yourself in your workplace can only help to engender confidence, strength and success.
However, Stonewall’s LGBT in Britain - Work Report (2018) found that 35% of LGBT staff have hidden their sexuality from colleagues for fear of discrimination. This data is based on YouGov research carried out among 3,213 LGBT employees across Britain.
How Does The Law Protect Employees From Sexual Orientation/Gender Reassignment Discrimination, Harassment And Victimisation?
Sexual orientation and gender reassignment are protected characteristics under the Equality Act 2010: it is unlawful to discriminate against any employee, job seeker or trainee with these characteristics.
It is therefore illegal to discriminate against an employee, job seeker or trainee because of their sexual orientation – whether they are gay, lesbian, heterosexual or bisexual.
The Equality Act protects people who are reassigning, or have reassigned, their sex by changing physiological or other attributes.
This legal protection covers people who:
- are proposing to undergo gender reassignment
- are undergoing gender reassignment
- have undergone gender reassignment.
Gender identity is not a protected characteristic under the Equality Act 2010, however. Non-binary persons have petitioned Parliament for legal protection against discrimination to be extended to cover gender identity.
Direct And Indirect Discrimination
Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic. An example would be an employee not being chosen for promotion because of their sexual orientation or their gender reassignment and the job going to a less qualified person instead.
Direct discrimination can occur in three ways. In the case of sexual orientation, for example:
- ordinary direct discrimination – due to a person’s actual sexual orientation
- direct discrimination by perception – because of a person’s perceived sexual orientation (whether they are of that orientation or not)
- direct discrimination by association – due to the sexual orientation of someone with whom a person associates (for example, discrimination because a family member is bisexual).
Indirect discrimination is where a rule, practice or policy exists and – even though it applies to everybody equally – it places people who share a protected characteristic at a disadvantage.
An example might be where a company’s maternity/paternity policy does not apply equally to employees who are in same-sex couples and employees in heterosexual couples. To be proven, the rule, practice or policy must put the individual claiming discrimination at a personal disadvantage.
Indirect discrimination is judged to be legal if it can be justified ‘for a good enough reason’. This is called an ‘objective justification’.
Protection Against Victimisation And Harassment
Victimisation occurs when a person is ‘subjected to a detriment’ – when they are placed in a worse situation than they were before – because they have carried out a ‘protected act’, such as:
- claiming discrimination under the Equality Act 2010
- helping someone else to bring a discrimination claim by giving evidence or information
- doing any other thing in connection with the Act
- alleging that another person has contravened the Act.
So it would be illegal for an employer to victimise a trainee who were to speak out against their employer because a fellow trainee had been disadvantaged at work due to their sexual orientation or gender reassignment.
Victimisation may also occur when somebody else believes that another person has done or may do a protected act and subjects that other person to a detriment as a result of that belief.
Harassment is unwanted conduct (related to a protected characteristic) that violates a person’s dignity, or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples include:
- spreading rumours speculating about somebody’s sexual orientation or gender reassignment
- jokes or insults
- exclusion from social events
- treating someone unfairly
- denying a person’s opportunities for training or promotion.
Harassment can occur in person, by email, by phone and/or by letter.
How Can A Solicitor Help?
If You Are An Employer
By law, employers are required to take reasonable steps to prevent discrimination, victimisation and harassment in their workplaces.
We can help you to write a policy to help prevent LGBT+ workplace discrimination, victimisation and harassment in the Acas-recommended areas of:
- determining pay, and terms and conditions of employment
- training and development
- adaptations at work for transsexual people
- selection for promotion
- discipline and grievances
- countering bullying and harassment
The recent Employment Appeal Tribunal case of Allay (UK) Ltd v Mr S Gehlen demonstrates that employers must not allow anti-discrimination/anti-victimisation/anti-harassment training for employees to become ‘stale’.
In Allay v Gehlen, an employer could not claim the defence that it had all taken reasonable steps to prevent harassment because its anti-harassment training for employees was not recent enough.
If You Are An Employee
Document what has happened to you. If you face regular problems at work, keep a diary; include dates and times. Try to talk to your employer or your HR department before taking legal action.
Get Expert Legal Help
Have you suffered discrimination, victimisation or harassment at work because of your sexual orientation or gender reassignment?
Are you an employer who is concerned that your workplace LGBT+ policies need to be reviewed?
Contact Coles Miller’s employment law solicitors for more information about LGBT+ discrimination issues.