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5th March, 2021
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February is LGBT+ History Month, raising awareness of the prejudice the LGBT+ community has faced and how we can help to combat it today. Being discriminated against at work because of their sexuality or gender identity? and how can a solicitor help employers make sure their workplace is a safe and welcoming environment for members of the LGBT+ community? Lucy Densham Brown discussed this and more live on Twitter this morning during #SolicitorChat.
Join The Law Society and other firms discussing on Thursday mornings 0900-1000.
What is the Equality Act 2010 and the Gender Recognition Act 2004 and how do they protect employees?
The Equality Act 2010 was intended to replace all anti-discrimination law into a single Act, making the law easier to understand, and strengthening protection. It offers protection in the workplace (and other areas) for people with nine defined protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
The Gender Recognition Act 2004 allows for a gender recognition certificate to be given to those who have had gender reassignment surgery. This allows a transitioned person to apply for a driving license, birth certificate, and other legal documentation in their chosen gender.
Unfortunately, the act has come under significant scrutiny from the trans community, with many saying the system under the GRA is intrusive, costly, humiliating and administratively burdensome.
Despite calls for reforms to the acts, both the EqA and the GRA offer employees protections based on their gender, sex, and sexual orientation. Employees are protected from direct and indirect discrimination, as well as harassment and victimisation. Employees can bring claims against their employers, and the employee or agent responsible for the discrimination.
Harassment and victimisation claims are outside the scope of this #solicitorchat, but if you believe you are being harassed or victimised, or you are an employer and believe that such acts are happening in your workplace, please contact our employment team for advice.
Talk us through the direct and indirect discrimination LGBT+ employees may face in the workplace.
Direct discrimination is where a person is treated less favourably than another person because of a protected characteristic. It covers if they themselves have the characteristic, or if they are associated with a person who does. An example might be a transgender person who is passed over for a role, because they are transgender; or parent with a transgender child, who is passed over because their child is transgender.
Indirect discrimination is where an act, decision or policy, which was not intended to treat anyone less favourably, nevertheless in practice disadvantages people with a particular characteristic. For example, if a company offers free bus passes to an employee and spouse, but the policy is old and only recognises marriage between a man and a woman. This would be indirect discrimination, as it excludes same-sex marriage.
It might be hard to work out on the surface if a policy is discriminatory. The best advice is if you feel that something or someone is discriminating against you, but you aren’t sure, talk to a solicitor for some tailored advice.
What should someone do if they feel they’re being discriminated against at work because of their sexual orientation or gender identity? How can a solicitor help?
If someone feels like they are being discriminated against, their first action should be to talk to their line manager about it, or follow their company’s grievance procedure. However, we know sometimes this can be difficult, especially if the discrimination is coming from a superior at the company, or if the company has a culture of ‘victim shaming’. If they are concerned at all, a solicitor can offer help and guidance on the process and help drafting any witness statements or communication that is needed.
If the grievance procure is not enough, the claim may need to go to an employment tribunal. A solicitor can provide advice on next steps, and make sure that a claim is drafted in the right way and meets the time limits that apply.
How can employers make their company a safe and welcoming environment for LGBT+ employees?
To creating a safe and welcoming environment for LGBT+ employees, employers could work on some of the following areas:
Start from the top
Senior staff members should strive to lead by example, and be encouraged to act to improve equality, diversity and inclusion in the workplace.
Equal Opportunity Policy
A workplace should have a policy that encourages equality, diversity and inclusion. It should detail what is expected of everyone, and the laws around discrimination. It should also give information about company procedures and how to resolve any problems
Training
This is a vital tool for employers to use to make sure everyone really understands the rules about discrimination. It can also be a great tool for encouraging understanding and empathy among colleagues
Encourage open conversation
Bringing forward claims of discrimination can be very hard for the party involved. If a workplace encourages open conversation from the start, and has a strict disciplinary policy in place for any victimisation, it will be easier for LGBT+ people to feel safe bringing complaints forward.
Take every complaint raised seriously
Employers could be liable too if an employment tribunal finds that one employee has been discriminating against another. It is therefore in their best interest, and in the interest of their employees to do due diligence on every complaint.
Why is it important for solicitors not to make assumptions about clients, specifically members of the LGBT+ community?
Solicitors are held not just to laws under the Equality Act, but to the SRA Principles and the Solicitors Code of Conduct. This demands that solicitors act in the best interests of their client. If they are making assumptions about their clients, instead of being open and listening to the facts, they may not act in their client’s best interests.
Solicitors should act in a way that upholds public trust and confidence in the profession. This trust and confidence may be degraded by solicitors making assumptions and not treating their clients with equality and dignity.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP