By Alistair Duncan, Partner and Head of the Commercial Department at Miller Hendry
June is Pride month, when the LGBTQ+ community celebrates with a series of events. It’s a joyful and fun time, but it’s also a protest – there are still battles to be fought, especially when it comes to discrimination in the workplace. Nobody should be made to feel uncomfortable because of their sexual orientation whether they’re in a single-sex relationship, are trans, or gender fluid. Yet even in the 21st century there are some workplaces where being gay can lead to discrimination, physical and verbal abuse, and even dismissal. To mark Pride month, we look at the legal rights gay and gender-fluid workers have under the current legislation.
The Equality Act 2010
Since 2010 it has been against the law to discriminate against a job candidate, employee or trainee based on their sexual orientation. So, an employer refusing to promote someone based purely on the fact that they’re gay or trans is illegal, and the employer can (and should) be taken to court.
Discrimination is defined into four different types.
- Direct discrimination: when someone is treated ‘less favourably’ because of their sexual orientation, whether that’s their actual orientation, their perceived orientation, or the sexual orientation of someone they associate with (known as direct discrimination by association).
- Indirect discrimination: This usually applies to company policy that is in principle designed to apply equally to everyone but may, in fact, discriminate against gay or trans people, such as maternity leave for people in same-sex couples, or bathroom policies.
- Harassment: This is defined as unwanted conduct that is deliberately designed to intimidate, humiliate or create a hostile environment for gay or trans people.
- Victimisation: If an employee suffers what is legally known as a ‘detriment’ (disadvantage, damage, harm or loss) as a result of the actions of their employer then they can pursue a case for victimisation. This is usually the case when a gay or lesbian worker has been passed over for promotion based solely on their sexual orientation.
The employer’s duties
To ensure that LGBTQ+ workers are treated fairly and equally, employers must have rigid workplace policies that avoid any kind of discrimination. These should apply not just to the working environment, but to recruitment, training, promotion, pay levels, and discipline/grievance processes. In fact, from the moment an employee walks through the door to the moment they leave at the end of the day, it is up to the employer to ensure the workplace is one where discrimination and harassment are eliminated completely, regardless of the sexual orientation of an employee, contractor, or visitor.
What constitutes harassment?
Anything from an inappropriate ‘joke’ to verbal or even physical abuse based purely on the sexual orientation of the victim is classed as harassment. That also includes written content, so a meme or social media joke that targets gay people and shared via an internal email system, for example, would constitute harassment.
It’s important that employers take complaints of harassment seriously. Passing it off as ‘just a bit of workplace banter’ is wholly unacceptable and no excuse for abusive behaviour of any kind. If a complaint is put in, then the employer has a legal duty to investigate it and respond.
Is it really that bad?
For over 40 years, the LGBTQ+ community have been fighting against workplace discrimination based on sexual orientation. It’s down to the employer and other employees to ensure that a hostile, toxic environment is eliminated, and that everyone is treated fairly and equally. We’ve come a long way in the last few decades, but there is still room for improvement in every workplace. The law makes it easier and less intimidating for LGBTQ+ workers to challenge harassment, but it’s up to everyone to make sure that everyone is made to feel worthwhile, welcomed, and valued in the workplace, regardless of their sexual orientation.
If you feel you’ve been discriminated against based on your gender or sexuality, talk to a solicitor specialising in employment law.