Members of the Royal Navy marching in London’s Gay Pride. Photo: Getty
After a very long campaign, new regulations which give legal protection from discrimination at work to gay men, bisexuals and lesbians came into effect on 1st December 2003. The regulations protect our community in cases of employment, training, working conditions, opportunities, and cover both direct and indirect discrimination. Five years later, however, experience of gay men and lesbians at work is that things have not changed very much.
The situation in the UK now
In the UK GLBTI employees are protected by The Equality Act of 2010 which replaces earlier regulations into a single and simplified Act.
As originally enacted by the regulations there were some exceptions to the legal protection for gay workers; gay men, bisexuals and lesbians who work in some jobs, especially for employers of a religious nature, were exempted from the regulations. This exemption has been identified as illegal by the European Commission, who ruled that it was not permitted by the Directive; new regulations were drafted to reflect the Commission’s requirements, but they were defeated by the House of Lords and dropped by the government.
The 2010 Act is revolutionary in a quiet way. The headings of age, disability (which includes mental health and people diagnosed as clinically obese), race, religion or belief, sex, sexual orientation, gender reassignment (people who are having or who have had a sex change, transvestites and transgender people), marriage and civil partnership, and pregnancy and maternity are now to be known as ‘protected characteristics’ and all persons with protected characteristics are protected by UK law.
The Equality Act 2010 also identifies no less than seven types of discrimination which are all illegal. Some of them are newly defined.
They are:
Direct discrimination is discrimination because of a protected characteristic.
Associative discrimination is direct discrimination against someone because they are associated with another person with a protected characteristic. Includes carers of disabled people and elderly relatives, who can claim they were treated unfairly because of duties that had to carry out at home relating to their care work, and discrimination against someone because, for example, their partner is from another country.
Indirect discrimination is when you have a rule or policy that applies to everyone but disadvantages a person with a protected characteristic.
Harassment is behaviour deemed offensive by the recipient. Employees can claim they find something offensive even when it’s not directed at them.
Harassment by a third party is the harassment of staff or customers by people they don’t directly employ, such as a contractor. The employer is responsible for the conduct of contractors.
Victimisation is discrimination against someone because they made or supported a complaint under Equality Act legislation.
Discrimination by perception is direct discrimination against someone because others think they have a protected characteristic (even if they don’t).
The 2004 Disability Act protects HIV positive people from getting the sack because of their diagnosis. It prevents businesses and employers from discriminating against people with HIV – the first time under UK law – as the virus will be classed under “progressive conditions”. Under previous laws, HIV positive people could be sacked for revealing their condition, or could face restrictions on their actions because of misguided fear of transmission and infection possibilities. That is now illegal.
Laws have also been passed which increase workers’ rights to work at times and in work patterns which suit them, when it is practicable to do so. Working parents of children under 6 or a child with a disability under 18 have a legal right to ask for part time working or flexible hours. The law applies to all employers in all sectors of the economy. Many employers would normally consider requests from people who want to further their education, for personal development or other commitments such as school governorships, although their ability to offer these concessions may depend on economic activity.
The advice is to put your request in writing stating the arrangement you want, remembering:
When you want it to start,
how it will affect the employer, and
how you would resolve any issues arising.
Your employer must set up a meeting to discuss it with you within 1 month. They must then decide and let you know within 14 days. They can refuse in some cases such as cost, detrimental effect on work quality performance, or impracticality.
Privacy and Monitoring
One of the rights enshrined in law is the right not to be ‘outed’ at work. To ensure that discrimination is not preventing people from achieving their potential, the law requires employers to monitor the numbers and progress of, for instance, disabled employees. Sometimes targets are set for companies to employ minimum numbers of disabled staff. Gay men and lesbians are currently not monitored and there is no legal requirement to monitor them. However, if we are not monitored, how can it be proved that we are not being discriminated against, and that, if known, our sexuality is not preventing us from getting promoted? Some workplace groups are now working on this problem, which they hope to pass to the new Equality Commission. Some companies do indeed monitor the numbers of gay and lesbian employees and also monitor their progress at work to ensure that they are not discriminated against in terms of job and training opportunities, and pay. The Trades Union Congress has published guidance for unions on the monitoring of LGBTI staff at work.
The Equality Act 2010 which was given Royal approval in April and comes into effect in October 2010 introduces further widening of protection from discrimination at work. It strengthens provisions against harassment at work and introduces the concepts of associative discrimination and discrimination by perception in the context of disability, gender reassignment and sex.
Measures against harassment are developed in that employees will be able to complain of behaviour that they find offensive even if it is not directed at them and they do not possess the relevant protected characteristic themselves.
Associative discrimination is the unlawful less favourable treatment given to someone because they associate with another person who possesses a protected characteristic.
Perceptive discrimination is the unlawful less favourable treatment of an individual because others think they possess a particular characteristic.
Problems at work
Who do you turn to for advice if you have a problem at work? The best advice is:
First speak to your manager.
If that person is the problem try their manager.
Failing that, go to your trade union if there is one.
Having had trouble at work myself, I also recommend having a support network of people you can rely on, and keeping a diary of incidents so you always have the facts documented and to hand.
Working in the EU
The theory behind the EU is that there is a “common market”, as it used to be called, and you should have the same rights at work in another EU country that you enjoy in your home country. So directives are issued which apply to all EU countries, and EU countries who have not fully implemented the working rights directives face legal action by the EU.
Gay Workers seek and win damages
The employment regulations are designed to help gay men and lesbians achieve justice when they are wronged, and in a growing number of cases, gay employees who were subjected to taunts, improper behaviour or other conduct have won cases and substantial damages. All employers should have policies in place to counter bullying and homophobic behaviour. Does your employer?
Other resources
Proud Employers – employers with gay-friendly attitudes
Starting Out Guide for gay and lesbian job seekers
EHRC Equality Act Starter Kit for employers
Links checked 19 May 2012
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