Member Article

Notwithstanding the pandemic, February marks LGBT History Month; an annual observance of lesbian, gay, bisexual and transgender history. It is important that the progress we have made to date is not only recognised but celebrated.

Background

LGBT History Month is observed annually in the United Kingdom to coincide with the abolition, in February 2003, of Section 28 of the Local Government Act 1988 which previously made it unlawful for local authorities to:

• intentionally promote homosexuality or publish material with the intention of promoting homosexuality; and
• promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.

It is also observed in the United States of America and other LGBT-progressive countries, and has been celebrated in the United Kingdom since February 2005, all with the intention of raising awareness of and combatting prejudice against what has been described as an otherwise substantially invisible minority.

In the employment context: historically

Some of us will have been reminded of the difficulties and prejudice that lesbian, gay, bisexual and transgender individuals all too often suffered in the workplace, thankfully in much former life, by recent popular television dramas and documentaries, including Russell T Davie’s “It’s a Sin”.

From a workplace context it was only in the early 2000s that employment laws regarding sexual orientation and gender identity began to evolve to where they are today.

Historically, equal protection for LGBT+ people in the workplace was a very different story to where it is today. It was not until the Human Rights Act 1998 came into force in 2000 that employment protection for gay and lesbian people really started to develop. Prior to that, the European Court of Justice in Grant v South West Trains Ltd¸ and the Court of Appeal in Smith v Gardner Merchant, had held that the Sex Discrimination Act 1975 did not cover discrimination on grounds of sexual orientation, meaning that sexual orientation was a justifiable ground for discrimination in the workplace.

Case law, subsequent developments in public policy and the then government's consultation in relation to new anti-discrimination laws were instrumental in the creation and implementation of the Employment Equality (Sexual Orientation) Regulations 2003. These regulations came into effect in December 2003 and have since been replaced by the provisions of the Equality Act 2010, which consolidated all the many pieces of discrimination law within England and Wales, and came into force in October 2010.

From a gender identity perspective, similarly it was not until the very late 90s, with the passing of the Sex Discrimination (Gender Reassignment) Regulations 1999 (which amended the Sex Discrimination Act 1975), that any form of employment protection was afforded to transgender people. Such a thankful change in law was attributable to the European Court of Justice's decision in P v S and Cornwall County Council, which confirmed that the right not to be discriminated on the ground of sex should be extended to the right not to be discriminated because of circumstances arising out of gender reassignment; the decision to dismiss an employee on the ground that they intended to undergo, or had undergone, gender reassignment was to treat them unfavourably by comparison with persons of the sex to which they were deemed to belong before their gender reassignment.

In the employment context: today

Fortunately, most employers nowadays understand the need to comply with equality laws and they recognise the true importance of diversity and inclusion within the workplace. However, such a positive position depends upon a number of factors, including organisational culture, management practices, interpersonal relationships, raised awareness, good communication (particularly during these difficult Lockdown-times), respect and support. Most importantly though, discrimination, whether because of sexual orientation or otherwise, and in all of its guises, must be banished – whether or not we are physically present in the workplace. Unfortunately however, there are early reports of increased occurrences of online bullying and harassment (not just within the LGBT+ community but across all protected characteristics), including the use of offensive and hostile language, largely due to the increased use of social media, instant messaging and text message via personal and work phones as a result of the pandemic.

Today, the Equality Act 2010 prohibits direct sexual orientation discrimination, indirect sexual orientation discrimination, sexual orientation harassment and victimisation in the workplace, for both job applicants and those in employment (under a contract of employment, a contract of apprenticeship or a contract personally to do work). Similar protection is also afforded in the area of gender reassignment, for those who are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. In particular it is unlawful for an employer to:

• discriminate directly by treating a job applicant or employee less favourably because of gender reassignment;
• discriminate by treating an employee less favourably in relation to absences from work because of gender reassignment;
• discriminate indirectly by applying a provision, criterion or practice that disadvantages transsexual job applicants or employees without objective justification;
• subject a job applicant or employee to harassment related to gender reassignment, to harassment of a sexual nature, or to less favourable treatment because they reject or submit to harassment;
• victimise a job applicant or employee because they have made or intend to make a discrimination complaint, or because they have done or intend to do other things in connection with the Equality Act 2010, such as raise complaints or grievances concerning their gender identity or their transitioning status.
  
  

Moving forward: continuous improvement

Diversity, inclusion and openness in the workplace should be recognised, celebrated and promoted, not just through February each year but always. Employers should adopt a number of best practice initiatives, including:

committing themselves to promote equal opportunities in employment, regardless of LGBT+ status (as well as age, disability, marital or civil partnership status, pregnancy or maternity, race, colour, nationality, ethnic or national origin, religion or belief and sex);

having in place equal opportunities and LGBT+-supportive policies to ensure inclusion and the avoidance of discrimination in the workplace, and that these policies apply to all stages of the employment lifecycle. Such policies should also be reiterated throughout the pandemic, and their message(s) should be led from the top;

• fostering LGBT+-supportive workplace environments to ensure a more engaged workforce. Respect and acceptance throughout are key;
• implementing diversity, culture and unconscious bias training, which will enable a more systematic and structured approach to the sharing of knowledge and awareness of the importance of diversity and inclusion;
• establishing an LGBT+ employee network, allowing visibility and awareness. At Shoosmiths we have our PROUD Network;
• having in place sufficient grievance policies and procedures for dealing with any complaints of discrimination, harassment and/or victimisation where such matters arise.
• Employees should be able to feel confident that their complaint will be dealt with seriously and that the process will be undertaken in confidence where appropriate;
• having an open and tolerant mind to the wide and diverse workforce in society; failure to do so could result in missed opportunities to attract talent or the inability to retain good staff;
• making conscious efforts to reassure staff of confidentiality of procedures and ensure that personal information is maintained in confidence. While some people are comfortable speaking about their LGBT+ status others are not; and
• considering the use of an equal opportunities questionnaire as part of a recruitment exercise or an annual review process. Some people do see the inclusion of such questions as an indication of an employer's positive attitude towards equal opportunities.
  
  

Such LGBT-supportive policies and aim will only go towards fostering a more engaged and productive workforce and employees having greater job satisfaction.

Employers are therefore encouraged to use February (but not only February), as a stepping stone at least, to promote not only LGBT History Month but celebrate their diverse and inclusive workforces and all of their existing LGBT+-supportive policies (and extend them wherever necessary). The aim is to properly raise awareness and combat any and all prejudice in this area. The right for LGBT+ rights is not over yet and we all have an important role to play to ensure that everyone gets an equal chance in life.

 

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