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LGBT rights – ensuring safety in the workplace: Harriet Calver writes for Changeboard

Thu 04 Aug 2016

This article first appeared on Changeboard on 21st July 2016.

In some countries same-sex activity constitutes a criminal offence attracting severe penalties, in other countries, same-sex activity is legal and LGBT people have most of the same legal rights as non-LGBT people.

LGBT people in the UK are some of the best protected in the world. Same sex marriage is now legal (same for Northern Ireland), as is same-sex adoption, and the Equality Act 2010 offers significant protection to the LGBT community against discrimination in the workplace.

Under the Equality Act 2010, “sexual orientation” and “gender reassignment” are recognised as “protected characteristics”, meaning that it is unlawful to treat a person less favourably because of their sexual orientation or because they have undergone, are undergoing, or intend to undergo gender reassignment. It is also unlawful to indirectly apply a provision, criterion or practice that disadvantages a person of a particular sexual orientation or because of their gender reassignment. This is unless the discriminatory act can be shown to be “a proportionate means of achieving a legitimate aim” known as “objective justification” but such a defence will only be successful in very limited circumstances. The Equality Act 2010 also prohibits harassment or victimisation of a person on the basis of these protected characteristics.

If an LGBT person believes they have been discriminated against, harassed or victimised in the workplace on the basis of their sexual orientation or gender reassignment, they have the right to bring a claim in the Employment Tribunal. This can be both against their employer and the person directly responsible for the discriminatory act. A discrimination claim must normally be submitted to an Employment Tribunal within three months of the date the discriminatory act took place However, there will sometimes be a course of discriminatory conduct rather than an isolated incident, in which case, the time does not start to run until the end of the course of discriminatory conduct.

The task of proving discrimination lies initially the victim of the discrimination (the Claimant). However, so long as they can show a prima facie case of discrimination, the burden will then shift to the employer or alleged perpetrator (the Respondent) to prove that the treatment was not discriminatory. In a successful discrimination claim, a tribunal may make a number of orders, the most common one being an order for the Respondent to pay compensation to the Claimant. Compensation is based on the tortious measure of damage, meaning it is calculated so as to put the Claimant in the position they would have been in if the unlawful discrimination had not taken place. The level of damages is uncapped.

A successful discrimination claim can be very costly for an employer and so it is wise for employers to take steps to eliminate discrimination in the workplace, such as by providing training on equal opportunities to all employees and adopting fair and non-discriminatory practices. 

It is also worth noting that the protection for LGBT people under the Equality Act 2010 is not limited to those living and working in the UK. The scope of the Equality Act 2010 can extend to people working outside the UK in circumstances where a tribunal considers there to be a sufficiently close link between the employment relationship and Great Britain. Therefore, posting an LGBT employee abroad to escape a potential discrimination claim is not an easy answer to avoiding liability.

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