To mark LGBT history month, Joanne Davies, partner in the employment law team at Blake Morgan, explains the importance of sexual orientation acceptance and how employers can take steps to prevent any potential discrimination.
Why is sexual orientation acceptance and inclusivity important to the workplace?
There is no doubt that diversity is good for business. A diverse workforce provides a wide range of individual skills and perspectives and a broad understanding of service users and clients.
But are there benefits for the individual? According to the 2013 Stonewall report Gay in Britain, 19% of lesbian, gay and bisexual employees had experienced verbal bullying from colleagues, customers or service users because of their sexual orientation in the last five years. 26% felt unable to be open with colleagues about their sexual orientation. Because of concerns about people’s reactions, some individuals are reluctant to disclose their sexual orientation at work but hiding it can be stressful and isolating. This can have an impact on health and well-being.
It is Stonewall’s view that if people are able to be themselves at work and are open about their sexual orientation they will perform better and feel more included and engaged.
Being committed to equality and diversity as an employer is not simply about legal compliance but being a model employer and employer of choice. This will be beneficial to current staff and will also help in the retention of staff and future recruitment.
What challenges does sexual orientation present in terms of recruitment and promotion?
The Equality Act 2010 (EqA 2010) prohibits discrimination, harassment and victimisation in relation to nine ‘protected characteristics’ one of which is sexual orientation. EqA 2010 defines sexual orientation as orientation towards:
- people of the same sex (that is, the person is a gay man or lesbian)
- people of the opposite sex (that is, the person is heterosexual)
- people of either sex (that is, the person is bisexual)
It is essential that the recruitment process is carried out fairly and free from discrimination and bias (whether conscious or unconscious) so that the successful candidate is chosen on merit.
An employer may use an equality and diversity monitoring form as part of the recruitment process and this may ask about sexual orientation. There is no obligation to answer that question and, in any event, the form should be kept separate from the candidate’s application form. This will mean that the information has not been taken into account during the shortlisting stage.
Consequently, unless a candidate mentions it at their interview, the interviewers are unlikely to know of the candidate’s sexual orientation. If they do learn about it, they need to ensure that they don’t discriminate against or treat the candidate less favourably because of their sexual orientation. The interviewers should not ask the candidate any questions of a personal nature which are unrelated to role.
It is also important to remember that EqA 2010 covers discrimination by ‘association’ and ‘perception.’ For example, someone may mention at an interview that they have a lesbian daughter and are not recruited for this reason. This would be discrimination by association with someone who has a protected characteristic. In terms of discrimination by perception, the interviewers may mistakenly make assumptions about a candidate’s sexual orientation because of their appearance.
An employer is vicariously liable for the acts of its employees during the course of their employment. To reduce the risk of liability for any discriminatory recruitment processes, employers should have in place an equal opportunities policy and ensure that all staff involved in recruitment have received training on equality and diversity. This will help to show that all reasonable steps have been taken to prevent discrimination occurring. To try and avoid unconscious bias, interviews should be carried out by more than one person and reflect diversity.
An individual should not be discriminated against in relation to the terms and conditions of employment such as salary, pensions and health insurance. Similarly, access to training and promotion opportunities should not be limited or denied on the grounds of someone’s actual or perceived sexual orientation or association with someone of a particular sexual orientation.
What practical steps can employers take to improve the culture of their workplaces for lesbian, gay and bisexual people? How can they monitor their compliance with equality legislation? Do you have any tips?
A good starting point is to ensure that policies and procedures are inclusive of lesbian, gay and bisexual staff. This doesn’t mean just having an equal opportunities policy. For example, all the family friendly policies such as maternity, adoption and shared parental leave for example, should make it clear that they include lesbian, gay and bisexual staff.
The organisation should make it known that bullying and harassment because of sexual orientation is a disciplinary matter and will not be tolerated. Staff should be informed that any complaints will be investigated promptly and thoroughly and dealt with appropriately.
Monitoring diversity and equality can be difficult especially in smaller organisations. Many people are reluctant to disclose personal information about their sexual orientation, religion or disability for example and there is no requirement to answer these questions. The best approach for employers is to explain that the information provided is strictly confidential and is to be used only for monitoring purposes.
Finally, employers can become a Stonewall Diversity Champion (see the website for more details).
Is there any guidance available on this subject for both employers and employees?
There is extensive guidance available including the comprehensive Employment Statutory Code of Practice produced by the Equality and Human Rights Commission which provides practical advice on complying with EqA 2010 and avoiding discrimination in recruitment. Acas has useful guidance entitled, ‘Sexual orientation discrimination: key points for the workplace’.
Stonewall also has extensive resources on its website covering topics such as discrimination, parenting rights, best practice guides and details of its current campaigns.
Any other interesting developments or controversial legal decisions?
Perhaps one of the most challenging issues for employers is handling conflicting rights in the workplace, for instance, between individuals who have certain religious beliefs and who hold particular attitudes about homosexuality. These situations need to be handled sensitively and the rights of both parties need to be balanced.
After many years of litigation, in January 2013, the European Court of Human Rights held in Ladele and McFarlane v the United Kingdom (App no 51671/10)  ECHR 737 (these cases related to the provision of services) that while the right to manifest religious belief at work is protected, that right must be balanced against the rights of others. If someone participates in discriminatory behaviour or harassment because they hold strong religious beliefs it will be difficult for them to rely on those beliefs if the consequence is other individuals suffering discrimination as a result.
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Joanne Davies is a partner in the employment law team at Blake Morgan LLP, with offices in Cardiff, Southampton, Oxford, Reading, Portsmouth and London. Blake Morgan is a diversity champion.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.