Workplace Discrimination – FAQ’s
4 February 2021 by Priya Patel
February 2021 is LGBT+ History Month, raising awareness of the prejudice the LGBT+ community has faced and how we can help to combat it today. But what should someone do if they’re being discriminated against at work because of their sexuality or gender identity? And how can a Solicitor help employers make sure their workplace is a safe and welcoming environment for members of the LGBT+ community? Following on from this week’s Law Society Solicitor Chat, Priya Patel from the FJG’s Dispute Resolution team has provided some answers on a few frequently asked questions.
What is the Equality Act 2010 and the Gender Recognition Act 2004 and how do they protect employees?
The Equality Act 2010 (EqA 2010) replaces previous discrimination legislation and provides protection from workplace discrimination in respect of certain protected characteristics: age; disability; gender reassignment; race; religion and belief; sex; sexual orientation; marriage and civil partnerships; pregnancy and maternity. The Gender Recognition Act 2004 (the GRA) was enacted to bring UK legislation into compliance with the European Convention of Human Rights (ECHR) and gives Trans people the right to change their legal gender. Gender reassignment is one of the protected characteristics of the EqA 2010 and therefore any discrimination under this characteristic is unlawful. Further, the GRA allows Trans people to obtain a certificate to legally change their gender.
Talk us through the direct and indirect discrimination LGBT+ employees may face in the workplace.
What is direct discrimination?
Direct discrimination occurs when an LGBT+ employee is directly treated unfairly, or less favourably, because of a specified ‘protected characteristic’, such as gender reassignment. It needs to be in comparison to others who don’t share this characteristic. As an example, where an employee is treated less favourably in relation to absences from work due to gender reassignment. A further example is when an employee’s friend has surgery to change their gender and management stops inviting them to company events. This is gender reassignment discrimination by association.
What is indirect discrimination?
Indirect discrimination is concerned with acts, decisions or policies (broadly speaking) which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic. Where such a policy disadvantages an individual possessing that characteristic, it will amount to indirect discrimination, unless it can be objectively justified.
What should someone do if they feel they’re being discriminated against at work because of their sexual orientation or gender identity?
How can a Solicitor help?
Employees should approach their line managers or their Human Resources departments before proceeding with instituting formal procedures in the first instance. Sometimes, discriminatory behaviour can be down to lack of education about its form(s) and an amicable resolution can be found to see the parties move forward amicably, utilising various alternative dispute resolution techniques.
If an employee is invited to an informal meeting, they can ask a work colleague or trade union representative (if applicable) to attend with them.
In the event that no resolution to the problem can be found to an informal basis, a next step would be for employees to follow their employer’s grievance procedures. These procedures can normally be found in employers ‘company handbooks; can be obtained by contacting human resources; the same may be on a firm’s intranet site, or may be contained within, or annexed to, a written contract of employment. An Employment Solicitor will be able to advise further of the necessary steps should no resolution be found to the above.
How can employers make their company a safe and welcoming environment for LGBT+ employees?
Employers must establish up-to-date policies within their employee handbooks and/or their contracts such as; equality, diversity inclusion and anti-discrimination policies. Employers need to take LGBT+ discrimination seriously and to ensure that all employees are able to identify how certain behaviours can be discriminatory, where to go and what to do if discrimination is suffered. Employers should also make clear to all employees what sanctions there might be in cases where discrimination is found to have been suffered.
Employers are encouraged to establish a clear mission statement for supporting LGBT+ in the workplace; by communicating to all employees through education and diversity training, inclusion policies and strategies for supporting LGBT+ and transgender employees.
Why is it important for Solicitors not to make assumptions about clients, specifically members of the LGBT+ community?
Stereotyping involves making assumptions about people based on their physical and perceived characteristics. Unconscious biases can also be based on stereotypes and subconscious prejudices. Unconscious bias occurs when people favour others who look like them and/or share their values. Where unconscious bias is against ‘protected characteristics’, it can be found to be discriminatory. Bias can profoundly impact a Solicitor and client relationship, Solicitor’s internal relationship with colleagues within the firm, and any community work involving the LGBT+ community. Solicitors can strive to eliminate the negative effects of making stereotypes and treat their clients and colleagues with respect by being more aware of others and being educated as to how various forms of discrimination can arise.
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