LGBT+ Employment Rights – #SolicitorChat Summary
June is Pride month, celebrating the LGBT+ Community across the globe. During #SolicitorChat we discussed the employment rights of the LGBT+ community and looked at what employers can do to become a safe and diverse workplace for their employees with LA Employment Team, Remziye Ozcan, Danielle Ayres, Sean McHale, Birkett Long LLP, Emplaw Online, CJCH Solicitors, Kevin Poulter, Paul Livingston and Sasha Scott Inclusive Group.
What rights do the LGBT+ community have in the workplace and what is considered discrimination?
Everyone explained that under the Equality Act 2010, lesbian, gay, bisexual and transgender people have the right not to be discriminated against because of sexual orientation or gender reassignment which are both protected characteristics.
Remziye Ozcan added that it’s unlawful to discriminate against:
· employees, job seekers and trainees because of their sexual orientation
· someone’s assumed sexual orientation, known as ‘discrimination by perception’
· a person who is connected to someone with a particular sexual orientation, known as ‘discrimination by association’.
Discrimination can take the form of direct or indirect discrimination, harassment or victimisation. Sean McHale highlighted that the failure of employers to address bullying and victimisation of LGBT+ employees by other employees would be an example of discrimination in the workplace.
For those looking to start a family, LA Employment Team highlighted that if you are a new parent or expecting a baby, you could also be entitled to maternity rights, paternity leave, shared parental leave, adoption leave and unpaid time off to look after your child or to attend antenatal appointments with your partner.
As solicitors, what are the key approaches you take when advising clients from the LGBT+ community?
Danielle Ayres explained clients may want their conversations to be confidential and a solicitor will need to be clear with their client about what information will need to be disclosed to a third party if they wish to pursue the case.
In order to advise clients effectively, solicitors need to promote trust and allow clients to talk freely about their relationships.
Remzye Ozcan shared the Advisory, Conciliation and Arbitration Service (ACAS) research which revealed that most complaints of sexual orientation discrimination involve homophobic bullying and harassment such as verbal abuse, exclusion from conversations, name-calling and threats. Therefore, the client’s mental health should be given extra consideration and Danielle Ayres agreed that this calls for an extra degree of sensitivity.
Overall, everyone expressed that they treat LGBT+ clients the same way they treat other clients – with respect and consideration.
How can a solicitor help someone who is being discriminated against because of their sexual orientation or gender identity?
A solicitor will identify a practical solution and represent you in any dealings with your employer to achieve this whilst providing guidance, advice and support.
They will review all options and guide you through the most suitable route, explaining your legal rights and giving advice on the legal action you can take. The options available could include making a formal grievance, an equality questionnaire or an employment tribunal claim which may lead to compensation. A solicitor is also able to advise on the wording of all these documents and make sure you are properly represented.
If a formal grievance does not solve the issue, your solicitor may contact the employer on your behalf and gauge whether or not the employer has suitable equality policies in place and whether they are taking action to resolve the matter. If not, a pre-action letter referencing the potential claim being filed at the Employment Tribunal may be sent with a view to avoiding the need for further action.
CJCH Solicitors highlighted that a claim which alleges harassment, victimisation, direct or indirect discrimination can usually be instigated without resigning or being dismissed.
What should you do if you’re being harassed or bullied at work because of your sexual orientation or gender identity?
If you are being harassed or bullied at work because of your sexual orientation or gender identity, you should:
· take expert advice from a solicitor
· collect evidence, keep a detailed diary with notes on what has happened – who said what, when and who else can verify this
· raise the issue with your line manager or HR department, if you feel safe enough to, at the earliest opportunity. You could also make a written complaint (grievance) to your employer. There may be a specific procedure to follow
· seek advice from a law centre, your trade union or the Citizens Advice Bureau
· in the absence of sufficient action, consider making a claim against your employer
Can you talk us through the process someone might go through with employment tribunals?
The first step when considering making a claim through the Employment Tribunal is to seek legal advice. A solicitor can discuss the process with you and advise whether your claim is likely to be successful and the costs of any legal advice.
Going through the Advisory, Conciliation and Arbitration Service Early Conciliation (ACAS EC) process is a mandatory process before bringing a claim. It’s therefore important to ensure this process is started within the relevant time limit. A solicitor can advise on time limits to ensure this isn’t missed.
Once the ACAS EC process starts the parties normally have a month to see if the matter can be resolved without the need to bring a claim. This period can be extended by two weeks.
How can a solicitor help employers become a safe and diverse workplace?
Employment law changes regularly, so it’s important for clients to be kept updated, especially if equality and diversity demands change.
Whether a solicitor is advising employers or employees, all clients should be aware that policies must be drafted to ensure there is no possibility of direct or indirect discrimination occurring in the workplace. Solicitors can help employers by reviewing their policies and training materials to ensure that they are LGBT+ inclusive and by drafting equality policies. Policies should be put in place to cover recruitment, pay, the terms and conditions of employment, discipline, grievances, bullying, harassment, equality and diversity.
Employees need to feel safe and comfortable in the workplace and, with the help of a solicitor, an employer can encourage equality and diversity through regular training for all managers and staff. A solicitor can also assist businesses with making handbooks covering areas such as diversity, equality, bullying and harassment.
A solicitor can advise on putting adequate policies and practices in place and on how to ensure these are implemented in practice. For example, an LGBT+ employee’s complaint about being discriminated against or bullied should always be investigated or the employer runs the risk of the employee bringing legal action. It’s also important to remember that disclosure of another employee’s sexual orientation may be perceived as harassment, a breach of the data protection act and, quite possibly, a breach of the employer’s policies and relevant procedures.
