June is Pride month, when the LGBTQ+ community celebrates with a series of events. It’s a joyful and fun time, but 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 21^st 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

It is 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 find themselves facing litigation.

Discrimination is defined into four different types which are as follows:

• 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 an employer’s company policy that is, in principle, designed to apply equally to everyone but may in fact discriminate against gay or trans people, such as lack of consideration in relation to maternity/paternity leave for people in same-sex relationships, or bathroom policies.

• Harassment: This is defined as unwanted conduct that is deliberately designed to intimidate, humiliate or create a hostile environment for gay, trans or gender-fluid workers.

• Victimisation: If an employee suffers from, what is legally known as, a ‘detriment’ (i.e. disadvantage, damage, harm or loss) as a result of the actions or omissions of their employer then they can pursue a case for victimisation. An example of this would be where a gay or trans worker has been passed over for promotion based solely on their sexual orientation.

What Constitutes as 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 or trans people and shared via an internal email system or work group chat, 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 appropriately.

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 which should apply not just to the working environment, but to recruitment, training, promotion, pay levels, and disciplinary and grievance processes. An employer should also ensure it gives regular equality training to employees at all levels as 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.

We’ve come a long way in the last few decades, but there is still room for significant improvement in every workplace. The law allows LGBTQ+ workers to challenge harassment, but it’s up to everyone to make sure that everyone is made to feel valued in the workplace, regardless of their sexual orientation and that a hostile, toxic environment is eliminated.

For further information, or if you feel that you’ve been discriminated against based on your gender or sexuality, speak to our Employment Law Team about any concerns you have with your employment. Please contact Karen Bristow or Hannah Lockyer on 01256 844888

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.