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How do I ensure I protect my LGBTQ employees against discrimination?

View profile for Gillian Markland
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How do I ensure I protect my LGBTQ employees against discrimination?

Media discussions of discrimination towards LGBTQ individuals have raised many queries on how such intolerance can be combatted, especially in the workplace.

Currently, LGBTQ people are protected from discrimination under either ‘sexual orientation’ or ‘gender reassignment’, with the former encompassing LGBQ identities and the latter encompassing transgender and non-binary gender identities (T). Clarity on developments of legal understanding and perception of gender can be found here.

A major point of contention with these protections came to a head following the Employment Appeal Tribunal’s ruling in Maya Forstater v CGD Europe.

In this case, Forstater did not have her employment contract renewed following complaints raised by her colleagues relating to her comments stating, as summarised by the Employment Appeal Tribunal, “gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity”. As a result, Forstater believed there would be situations where she would wish to refer to transgender people by their gender assigned at birth, which would be acts of misgendering, and constitute harassment, as confirmed in the appeal hearing.

The Employment Appeal Tribunal held the views of Ms Forstater were a “philosophical belief”, upholding her submission that her beliefs were “shared with others and were statements of neutral fact, not expressions of antipathy towards transgender people.” They stated that her belief is “worthy of respect in a democratic society, not incompatible with human dignity and does not conflict with the fundamental rights of others”. However, the Employment Appeal Tribunal also highlighted it did not mean those with gender critical views can misgender “with impunity” and that “whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of the Equality Act will be for a tribunal to determine in a given case”.

Inevitably the judgment is a cause for concern for transgender employees who worry that it would give licence to those seeking to harass and discriminate against them and also to employers who have to navigate the various obligations of the Equality Act.

What does this mean for employers?

Employers are legally bound to provide a safe working environment for all their employees including transgender people.  They continue to be liable for acts of harassment and discrimination against transgender people committed in the course of their employment.  This recent decision does not give anyone the right to unlawfully harass, intimidate, abuse or discriminate against transgender people. The Employment Appeal Tribunal specifically drew attention to this, noting that an ACAS research paper found workplace bullying to be common, with many transgender employees facing such discrimination on a daily basis. It is therefore imperative that employers find effective ways of combatting such intolerance in the workplace.

Equal Opportunities policy backed by effective training

With nearly 1 in 5 LGBTQ employees having received negative comments from colleagues about their identities and an additional third of LGBTQ employees not disclosing their identities at work for fear of discrimination, the answer is clear: employers need to have in place an Equal Opportunities policy and implement effective training procedures which includes transgender inclusion and a zero tolerance approach to homophobia, biphobia and transphobia. This will ensure all employees are aware of their rights in the workplace and how to report any instances of discrimination safely.  That, together with an Equal Opportunities policy will best protect their LGBTQ employees.

Social Media policy

An aspect of this case was that Fostater’s views were expressed primarily via her personal social media rather than in a work setting. Nevertheless we always recommend that employers have a social media policy that is clearly communicated to employees, that sets out expectations and obligations in relation to the use of social media. Employers themselves also need to be aware of the extent and limitations of such policies as tested out in recent case law.

Seek professional advice at an early stage

Finally, the highlighted Employment Appeal Tribunal decision highlights that case law in relation to the Equality Act is evolving, particularly in relation to the legal test for what constitutes harassment and discrimination. In addition to having clear policies in place, where individual situations do arise, it is important to seek specialist legal advice at an early stage to ensure the steps you take in dealing with any grievances or concerns raised reflect the current legal position.

If you would like assistance ensuring your policies and procedures effectively protect your staff and candidates, talk to our team of specialist employment lawyers and we will be happy to help.

Our articles are intended for general information purposes only and are not a substitute for professional advice tailored to your specific circumstances. We are always very happy to discuss any plans, issues or concerns you may have and to clarify how we might be able to help. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.