LGBTQ+ employment rights in the workplaceby
In support of Pride Month 2021, Barry Ross demonstrates LGBT+ employment issues still pervading the workplace in the UK and the laws protecting them.
Stonewall and LGBTQ+ rights have recently been in the news for all the wrong reasons when an independent report commissioned by The University of Essex found that Stonewall gave incorrect and potentially illegal advice on transgender issues.
The Equality and Human Rights Commission (“EHRC”) also told Stonewall it would be leaving its Diversity Champions Scheme, though this followed an open letter from Stonewall and other LGBTQ+ groups criticising the EHRC.
It is hard to conceive that as recently as 1967, being gay in the UK was a crime and that same-sex marriage only became legal in England and Wales in 2014. The first UK legislation introduced to protect against discrimination because of sexual orientation was only introduced in 2003 – less than twenty years ago.
Today, sexual orientation and gender reassignment are two of the protected characteristics which are protected under the Equality Act 2010 legislation, which (amongst other things) helps to try and ensure equal treatment in the workplace for everyone, irrespective of their sexual orientation.
How far has LGBT+ employment treatment come?
It is clear that while we have come a long way, there is still a long way to go to truly ensure equal treatment for all. For example, a 2018 survey found that one in three employers polled would be less likely to hire a transgender person. A recent enquiry has requested a new survey as things are no better now than in 2021.
This feeling is supported by the survey undertaken by CIPD in February 2021 which found that 40% of LGBTQ+ workers and 55% of trans workers are more likely to experience conflict and harassment than their heterosexual and cisgender colleagues.
A search of Employment Tribunal decisions website shows 375 decisions relating to discrimination because of sexual orientation and 201 decisions relating to discrimination because of gender reassignment in one year alone between 1 June 2020 – 1 June 2021.
One of the issues found when conducting the survey was that almost a quarter of employers polled did not know that there were laws protecting transgender workers and over three-quarters of employers polled were wrong when asked which transgender characteristics are protected against discrimination.
With that in mind, it is worth reminding accounting businesses about some of the types of discrimination LGBTQ+ people are protected against under the Equality Act 2010 within any business, including those of their clients.
It is discriminatory to treat someone less favourably because of their sexual orientation or gender reassignment. This can occur in any number of circumstances, but one example might be specifically promoting a heterosexual employee ahead of another employee because they are LGBTQ+.
This occurs when someone engages in conduct that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment because of someone’s sexual orientation or gender reassignment. Examples of this might include bullying or name-calling, both frequently arise in the workplace in the thinly veiled guise of “banter”. It is important to remember that it is not necessary for the individual in question to actually possess the protected characteristic for them to be harassed as per English v. Thomas Sanderson Blinds ltd  IRLR 206.
This occurs where someone treats a person detrimentally because they have “done a protected act” or someone “believes that they have done or may do a protected act”. “Doing a protected act” has a set formula, but commonly this will be bringing claims under, or raising allegations of breaching, the Equality Act 2010. For example, an LGBTQ+ member of staff complains about being discriminated against because of their sexual orientation, then their manager takes revenge by subjecting them to disciplinary proceedings, or an employee might leave their employment and bring a claim for direct discrimination only to then receive a negative reference from the previous employer.
It is important to ensure that measures that you take as accounting businesses for yourself and your clients to avoid discrimination towards LGBTQ+ staff are set out clearly in your policies and documents.
However, remember that simply paying lip service to this is not enough and you need to ensure both regular training and actively promoting equality in the workplace takes place.
Equality should not just be an ideal to strive towards in the future, we should already be there today, and Pride Month is a useful reminder of this yardstick
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Barry Ross, director and partner at Crossland Employment Solicitors, has been practising Employment Law since 2006 when he worked in-house for major legal expenses Insurance provider, DAS. There, he provided employment law advice across a whole spectrum of issues to commercial and individual clients. Barry provides commercial advice on all...