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. Even in the 21st century there are some workplaces where out of date attitudes towards being gay or transgender can lead to discrimination and harassment. To mark Pride month, we look at the 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. An employer who for example rejects a gay person’s application for promotion on the basis that they are gay faces an allegation of direct discrimination.  A manager or director who makes a similar prejudiced decision also risks being sued in their personal capacity to stand beside the company in the dock.

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 has a disproportionate discriminatory effect against gay or transgender people. Poorly drafted family friendly policies or bathroom politics could fall foul here.
  • Harassment: Is perhaps the most frequent claim brought to enforce the Equality Act.  This is when there is unwanted conduct that intimidates, humiliates or creates a hostile environment for gay or transgender people.
  • Victimisation: If, having claimed or asserted one’s rights under the Equality Act, an employee goes on to suffer as a detriment (i.e. some sort of disadvantage, damage, harm or loss) as a result, they have been victimised. These offences are often quite technical and often misunderstood.

What constitutes harassment?

Anything that creates a hostile, degrading or intimidating environment; name calling, silly jokes, any form of bullying and even giving someone the “cold shoulder” have been found to be examples of harassment. These days, poorly judged or downright offensive social media posts are common examples of evidence of harassment.

What to do?

It’s important that employers take complaints of harassment seriously. Passing it off as “its just banter” is not a good defence in most cases. If a complaint or grievance is ever raised the employer should investigate and respond.

To reduce legal risks and to direct good practice at work, employers should consider having sensible equal opportunities policies in place and to offer “equal opps” and unconscious bias training. A good policy should apply not just to the working environment, but to recruitment, training, promotion, pay levels, and discipline/grievance processes.

If, despite the best efforts of a company to educate staff and to enforce good practice, an individual was accused of harassing a gay colleague and the employer company and the individual are both sued, the company may have a defence and the blame could be laid solely at the feet of the errant individual employee. 

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. Cases are still brought under the Equality Act, so we have not eradicated the problem.

For help, advice or training on the Equality Act, Equal Opportunities or Unconscious Bias, or for assistance with any other employment law issue, please contact Jolyon Berry in the Employment team on 01206 574431 or email jolyon.berry@tsplegal.com . Thompson Smith and Puxon has offices in Colchester and Clacton , Essex.