Your rights at work

work170123

Text last updated 23 January 2017
Links last updated 23 January 2017

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Uncredited artist | Kinja Lifehacker | 14178

What is this about?

Your rights as a gay or trans person at work in the UK and Europe.

People who are lesbian, gay or bisexual, and transgender, perform better at work when they can be themselves.

Legal protection from discrimination at work for 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. The experience of gay men and lesbians at work, some years after the laws has changed, is that some things have improved, while other things have not changed very much.

In January 2017 it was hoped that the regulation which allows staff in the merchant navy to be dismissed for homosexual conduct, will be repealed.

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.

In December 2014 A World Bank Study found that in the UK, Lesbians were paid on average 8% more than straight women but gay men were paid 5% less than straight men. (In the US, Lesbians were paid 20% more than straight women, while gay men’s pay was 9% less than straight men in Germany and 12% less than straight men in Canada.) The report noted that many organisations are “biased against gay men” and that “the labour market values gay men’s characteristics less than those of heterosexual men”.

As originally enacted by the regulations there were some exceptions to the legal protection for gay workers; gay men, bisexuals and lesbians who work in some jobs, especially for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).

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Wicked Gay Blog | 17009

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.

Cost of taking actions

You now have to pay to take a case to the industrial tribunal. Costs range from around £400 (for loss of wages, for instance) to £1,200 for sexuality harassment claims. The cost has resulted in a 60% drop of cases being brought to the Tribunals. Critics say ordinary workers are now being denied justice at work.

Review of Industrial Tribunals

The UK Government has launched a consultation on reforms to the employment tribunal system as part of a wider programme of court reform intended to modernise claims handling, streamline access to justice, reduce costs and bring the employment tribunal system more in line with other statutory tribunals.

The government intends to improve the efficiency of court claims handling, which it sees as overly bureaucratic and overly dependent on paper documents; digitising the entire claims process.

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 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?

City attitudes

At the launch of Out in the City in November 2012, Simon Collins, senior partner at global accountancy group KPMG, said staff not free to “be themselves” cannot work as comfortably and creatively with clients as they should. “We have to mirror and lead our clients — not follow some decades behind,” he said, revealing that even in confidential surveys, only a third of KPMG’s 12,000 staff were prepared to reveal their sexual orientation. Mr Collins added that though he is straight, he has some insight into gay workers’ experience. “I spent a lot of the early part of my career thinking about whether [being Jewish] mattered and whether I should mention it to people,” he said. “It’s been quite a shock to imagine people are still feeling the way I was 30 years ago, and worse.”

While few workplaces are openly hostile to gay employees, there are many where it is difficult for them to be open. Lord Browne of Madingley, former BP chief executive, said there were no openly gay bosses in FTSE-100 Index firms, adding: “I wish I’d been brave enough to come out right at the start of my tenure as chief executive of BP. I didn’t do it and I regret it to this day.”

The head of BP’s global commodities trading business described how being a gay senior executive can be awkward when confronted with junior staff who are not similarly open. Paul Reed said: “I’m constantly surprised when I’m on the trading floor meeting young traders and there’s a sudden shock when they realise they’ve met me somewhere else … They give me a little signal as if to say: ‘I’m not “out” at work, you know.’ I don’t want traders hiding half of their brain. I want their entire brains focused on making me lots of money.”
Acts of Parliament

The Equality Act 2010

Home Pages

Proud Employers
Starting Out Guide for gay and lesbian job seekers
Irish Congress of Trade Unions, Ireland
Trades Union Congress
Stonewall: Workplace guides
Articles

EHRC, Undated: Equality Act Starter Kit for employers
Evening Standard, 14 Nov 2012: Gay City workers are being ‘held back by old-fashioned attitudes’
Independent, 29 July 2014:Discrimination at work goes unpunished
International Law Office, 4 January 2017: New consultation on industrial tribunals
Metro, 23 January 2017: UK’s last anti-gay law to be scrapped

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