LGBT+ History Month

LGBT History Month takes place in the UK in February and aims to promote tolerance and raise awareness of the prejudices faced by lesbian, gay, bisexual and transgender people.

In a recent research by the Charity Stonewall:

• One in five LGBT people have experienced a hate crime or incident because of their sexual orientation and/or gender identity in the last 12 months
• Two in five trans people have experienced a hate crime or incident because of their gender identity in the last 12 months
• Four in five anti-LGBT hate crimes and incidents go unreported, with younger LGBT people particularly reluctant to go to the police

​In this article we briefly look at the protection that the Equality Act, which became law 10 years ago, provides to individuals who identify as LGBT+.

Protected characteristics

The Equality Act protects people against discrimination because of a protected characteristic. Under the Equality Act, there are nine protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and Civil Partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Employees and workers together with individuals who are self-employed providing their own employment contract obliges them to form the work personally have the right not to be discriminated against, harassed or victimised.

The Equality Act also covers areas outside of the employment field such as education, the provision of goods and services, housing and the provision of services carried out by public authorities.

There is no qualifying period of employment required to pursue a discrimination claim in the Employment Tribunal.

The Equality and Human Rights Commission Statutory Code of Practice helpfully provides the following

Sexual orientation is a protected characteristic. It means a person’s sexual orientation towards:

persons of the same sex (that is, the person is a gay man or a lesbian);

persons of the opposite sex (that is, the person is heterosexual); or

persons of either sex (that is, the person is bisexual).

The protection under the Equality Act includes how people feel as well as their actions. It can include someone’s appearance; the places they visit or the people they associate with.

Gender reassignment

Gender reassignment is a separate protected characteristic and unrelated to sexual orientation. The Equality Act defines gender reassignment as people who are proposing to undergo, are undergoing, or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex to have the protected characteristic of gender reassignment.

If a transsexual worker is absent from work because of gender reassignment, it is unlawful to treat them less favourably than they would be treated if they were absent due to an illness or injury.

Direct and indirect discrimination

Discrimination can be direct or indirect. An individual may also find themselves being harassed or victimised. Other than age discrimination, direct discrimination cannot be objectively justified.

An example of direct discrimination from the Human Rights Commission Statutory Code of Practice: is a follows:

At a job interview, an applicant mentions she has a same sex partner. Although she is the most qualified candidate, the employer decides not to offer her the job. This decision treats her less favourably than the successful candidate, who is a heterosexual woman. If the less favourable treatment of the unsuccessful applicant is because of her sexual orientation, this would amount to direct discrimination.

Or

A saleswoman informs her employer that she intends to spend the rest of her life living as a man. As a result of this, she is demoted to a role without client contact. The employer increases her salary to make up for the loss of job status. Despite the increase in pay, the demotion will constitute less favourable treatment because of gender reassignment.

Whilst direct discrimination still occurs, it is increasingly less common in the employment field. More often than not, employees or workers assert that they have been subject to indirect discrimination. indirect discrimination may occur when an employer applies an apparently neutral provision, criterion or practice which puts workers sharing a protected characteristic at a particular disadvantage.

Examples of indirect discrimination from the and Human Rights Commission Statutory Code of Practice are as follows:

An employer starts an induction session for new staff with an ice-breaker designed to introduce everyone in the room to the others. Each worker is required to provide a picture of themselves as a toddler. One worker is a transsexual woman who does not wish her colleagues to know that she was brought up as a boy. When she does not bring in her photo, the employer criticises her in front of the group for not joining in. It would be no defence that it did not occur to the employer that this worker may feel disadvantaged by the requirement to disclose such information.

Or

An employer decides not to confirm a transsexual employee’s employment at the end of a six months’ probationary period because of his poor performance. The employee is consequently dismissed. Yet, at the same time, the employer extends by three months the probationary period of a non-transsexual employee who has also not been performing to standard. This could amount to direct discrimination because of gender reassignment, entitling the dismissed employee to bring a claim to the Employment Tribunal.

Harassment

As noted above an individual could also find themselves subject to harassment. Harassment occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic (i.e. sexual orientation) and which has the purpose or the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

The Human Rights Commission Statutory Code of Practice provides the following example:

A worker is subjected to homophobic banter and name calling, even though his colleagues know he is not gay. Because the form of the abuse relates to sexual orientation, this could amount to harassment related to sexual orientation.

The Equality Act also protects individuals from being victimised because they have for example issued a claimed under the Equality Act, made an allegation that another person has done something in breach of the Equality Act or given evidence or information in connection with proceedings under the Equality Act.

For example, if an employee makes a complaint of discrimination on grounds of sexual orientation against their employer and as a result they are denied a promotion. The failure to obtain promotion would be an act of victimisation and the employee could take legal action against their employer at the Employment Tribunal.

According to the Employment Tribunals latest quarterly statistics (July 2019 – September 2019), 131 claims for discrimination grounds of sexual orientation were filed. This is the highest figure since 2013.

In the employment field, both employers and individuals can find themselves being pursued by a worker for discrimination, harassment or victimisation. Employers should make sure that they have an Equal Opportunities Policy, that the policy is followed and that all staff are reminded about the policy on a regular basis and that any breach of same constitutes disciplinary action.

Outside of the employment field, those who find themselves subject to discrimination, harassment of victimisation can seek redress via the County Court.

More informationIf you are an individual or a company and you wish to obtain advice on the Equality Act 2010, your rights, obligations etc., then please do not hesitate to contact us in confidence.   This article was written by Alex Pearce, Senior Associate in the Employment Law Team at Pinney Talfourd LLP. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of February 2020.