Tag Archive: Inclusive

  1. Key LGBTQ+ Employment Law Cases

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    Elena Cooke
    ScotEng Work Experience Law Student

    5 minute read


    Key LGBTQ+ Employment Law Cases

    According to a recent report by Stonewall, nearly one in five LGBTQ+ staff were subjected to negative remarks or behaviour from work colleagues in a year solely because they belong to the LGBTQ+ community. This shows that despite society becoming more progressive, discrimination based on sexual orientation and gender identity remains a widespread problem in the workplace. The cases below are examples of this type of discrimination taking place, and the possible consequences for employers when their employees or they themselves participate in discrimination. 


    A brief explanation of the law

    The Equality Act 2010 deals with protected characteristics, and discrimination based on these characteristics is illegal. Sections 7 and 12 relate to LGBTQ+ matters. Section 7 deals with those who have undergone gender reassignment, which can be interpreted as being transgender or non-binary. Section 12 means that a person’s sexual orientation is also a protected characteristic. 

    Discrimination can either be direct or indirect. Direct discrimination is discrimination that has taken place solely because of the person’s characteristic, whereas indirect discrimination is a practice or policy that has the effect of disadvantaging people with a certain protected characteristic. 


    Souza v Primark Stores Ltd 2017 

    This is a case about an employee bringing claims for direct discrimination and harassment under the Equality Act 2010. Here, the employee was a transgender woman who worked for Primark, where her legal name was registered on the system, however, she had a preferred name which differed from this. When she began working there, the name badge given to her had her legal name instead of her preferred name on it. Furthermore, she complained of incidents such as being intentionally called her legal name by co-workers even though they were aware of her preferred name, being told by colleagues that she smelled “like a men’s toilet”, and that the female toilet was described as having “no ladies in there” when she was inside.  

    After she made a formal complaint, she was not notified of the outcome of the investigation, despite the fact that the other parties involved were informed that no further action would be pursued. It was held that this, along with the failure to inform her of the right of appeal, had been direct gender reassignment discrimination, as the court found that an employee who was not transgender would not have been treated in this manner by the employee. 

    Ultimately, she was awarded £47,433 for loss of earnings as a result of direct discrimination and harassment, as well as for injury to feelings. 


    Ditton v C P Publishing Ltd 2006

    When this case was decided, the 2010 Act did not exist, however, the outcome would most likely be similar today. In this case, upon finding out in the employee’s interview that he was homosexual, his colleagues then repeatedly subjected him to homophobic insults during his initial training. The employee was dismissed after only 8 days of work and was successful in his claims for direct discrimination and harassment on the grounds of his sexual orientation. Overall, he was awarded £86,937, which included £10,000 for injury to feelings. He also received additional awards because the company had failed to respond to his complaints.


    McMahon v Redwood 2018 

    In this case, a homosexual employee was told by her manager to keep her sexuality private from her colleagues, which made her feel “odd and uncomfortable”. It was found that she had been discriminated against on the grounds of her sexual orientation, as she had been treated less favourably in comparison with how someone without this protected characteristic would have been treated. 


    English v Thomas Sanderson Ltd 2009 

    Again, this case was decided before the 2010 Act was in effect but would still be relevant now. 

    This case is about whether or not someone can be discriminated against for their sexual orientation even if it is not their actual sexual orientation.  The employee was tormented by homophobic insults at the hands of his colleagues despite the fact he was not gay, and his colleagues did not believe him to be so.  He succeeded in establishing he had been harassed on the grounds of his sexual orientation.  

    This shows that the Equality Act now provides protection against “presumptive” discrimination. This means that even if the colleagues had believed him to be gay and had harassed him on that basis, but he was not gay he would have protection under the Act.  


    What can be done to prevent these situations from taking place? 

    As we have seen, discrimination against the LGBTQ+ community is still prevalent in the workplace, however, this does not have to be the case as there are steps employers should take in order to prevent this from happening again. This includes implementing anti-discrimination and harassment policies and ensuring they are reviewed frequently to keep them up to date and make sure that employees understand and comply with them. Organisations should also make sure to monitor the effectiveness of the policies in place. Training should be rolled out on harassment and discrimination across the business, particularly applying to managers to ensure there is awareness surrounding these issues. Again, the effectiveness of this training should also be monitored.  

    This will benefit both employer and employees; not only will this help to prevent the need for claims to be raised against employers but will also promote a more welcoming and inclusive work environment.  

    For more information on how to ensure your workplace is LGBTQ+ inclusive, check out our previous blog which features top tips: Sexual orientation discrimination in practice. 


  2. A look at sexual orientation discrimination in practice   

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    Amie Trainor
    Trainee Solicitor

    5 minute read

    Continuing our look at LGBTQ+ issues in the workplace, our latest blog focuses on the key sexual orientation discrimination case of P Allen v Paradigm Precision Burnley Ltd and Carl Wheeler, and what steps employers can put in place to help prevent discrimination of this nature from happening in their business. 

    P Allen v Paradigm Precision Burnley Ltd and Carl Wheeler  

    In this case, the employee was an Operations Director and candidate for a General Manager position at an engineering company. After expressing his wishes for adoption leave to his manager, as he and his partner wished to adopt a child, the employee was told the company could not facilitate a manager being off for 12 months to have a child. After this request, the employee’s sexuality became widely known and he was subject to several incidences of discriminatory behaviour, such as being called “camp” on various occasions, limp wrist gestures being made towards him, and being sent stereotypical gay characters via email and being asked what type of man he liked at work, among other incidents. 

    The employee eventually resigned from his position, unable to continue his role due to the workplace behaviour he was subjected to. The employee was successful in claims of constructive unfair dismissal, direct sexual orientation discrimination, harassment relating to sexual orientation, victimisation and detrimental treatment for seeking to take adoption leave. He was awarded £174,645 by the tribunal as a result.  


    What can we learn from this? 

    Considering the Allen case, there are clear steps an employer can implement to make the workplace LGBTQ+ inclusive: 

    Have a policy in place which is visible, monitored and reviewed regularly 

    As we can see from the case above, the employer was held liable for the actions of their employees. However, a reasonable defence can be obtained by the employer if they can demonstrate they took reasonable steps to prevent such discriminatory behaviour from happening. Having both a diversity and inclusion policy and an anti-bullying/ harassment policy is a great starting point. This will not only reduce the likelihood of claims of this nature but also help to create a safe and inclusive workplace for LGBTQ+ employees. It is not enough to simply have a policy in place, it must be regularly reviewed, made public for all employees to see and it must be monitored to ensure it remains effective.

    Raise awareness in the workplace 

    There are many ways to raise awareness of LGBTQ+ issues. Rolling out training programmes for all employees on workplace harassment and LGBTQ+ issues is an effective way to ensure the workforce is educated. These steps will help employees identify the type of behaviour that is not acceptable and acts as a preventative measure. It is important that training is regularly refreshed and monitored to ensure it has had the desired impact. Raising awareness can also be achieved by hosting LGBTQ+ events and campaigns within the organisation. 

    Support LGBTQ+ employees  

    Creating safe spaces where LGBTQ+ employees can report incidents of harassment and/or discrimination is essential in fostering an inclusive workforce. This can be done by having LGBTQ+ working groups, mentoring programmes and clear reporting lines where employees feel comfortable reporting incidents. It is important to take all allegations seriously and investigate accordingly, as this will create a sense of trust within the organisation whereby employees in the LGBTQ+ will feel supported and empowered to report any discrimination or harassment they may be facing. 

    Ensure you are up-to-date on how family-friendly employment laws impact LGBTQ+ employees 

    In the Allen case, the employer dismissed the employee’s desire to take adoption leave to start a family with his partner, which ultimately was found to be detrimental treatment. To ensure you are dealing with such requests appropriately, engage in discussions on family-friendly policies (such as adoption, parental leave, shared parental leave etc) to ensure they do not cause any adverse impact to those in the LGBTQ+ community. Ensure these are legally compliant and are adhered to within the organisation. The ScotEng Legal & HR Team can assist with any queries relating to family-friendly employment policies. 


  3. Trans-friendly workplaces

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    Amie Trainor
    Trainee Solicitor

    5 minute read

    In recognition of Pride Month this June, we will be posting blog articles which focus on LGBTQ+ issues in the workplace. Today, we will be looking at the rights and protection offered to those who are transgender in the workplace and ways to ensure you are a trans-friendly employer. 


    The Law 

    The law provides that someone must not be discriminated against because their gender identity is different from the sex assigned to them at birth. The protection against discrimination in the workplace derives from s.7(1) of the Equality Act 2010. “Gender reassignment” is listed as one of the 9 protected characteristics, designed to offer protection against discrimination in law. The terminology used in the Act – gender reassignment – is now dated, with the commonly used terminology being “transgender”. Gender reassignment is defined as someone who proposes to undergo, is undergoing or has undergone a process (or part process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment. The statutory definition also comes with some issues, as based on the language used, it is not clear whether protection is extended to those who are non-binary or gender fluid.  

    The issue of whether those who are non-binary or gender fluid was considered in the case of Taylor v Jaguar Land Rover Ltd [2020] ET/1304471/2018. This decision actually extended protection under the protected characteristic of gender reassignment. In this case, the employee was subject to workplace bullying, where colleagues referred to the employee as “it” and asked inappropriate and offensive questions. The employer also offered little support regarding issues the employee was having regarding which toilet to use and ignored complaints raised by the employee. The employer argued that as the employee was non-binary, the protected characteristic of gender reassignment did not apply. They ultimately failed as the court extended protection to those who are non-binary/gender-fluid as the employee was “on a journey” of transition and did not need to have arrived at the end of the (very broad) spectrum.  


    Tips to be a trans-friendly workplace –


    Have a clear equality & diversity policy 

    Ensure your organisation has a policy which covers equality and diversity that caters to all groups within the LGBTQ+ community, as all have different needs. This policy must be somewhere accessible to all employees and referenced in communications so the workplace is familiar with its existence. The effectiveness of the policy must also be monitored to make sure it’s having the desired impact on the workforce. This can be done through employee surveys and focus groups. Reviewing other existing policies, such as a dress code policy, to check for any negative implications for trans employees.

    Be aware of language and pronouns  

    Respecting pronouns and names (such as he/she/they/them) which employees prefer helps to adopt an inclusive workplace. This includes making sure documents and systems do not mistakenly use the wrong pronouns, names or titles for individuals. Keeping a record of employees’ preferred pronouns, alongside other personal details, can also help ensure that they are used correctly for personnel and administrative purposes. Adding pronouns to your email signature and using your pronouns out loud in introductions can also help create a safe space which doesn’t single anyone out.  

    Investigate all allegations of harassment or discrimination appropriately  

    A recent report published by recruitment firm Totaljobs found that almost a third (32%) of trans people have experienced discrimination in the workplace. This shows that even if you do not believe you have a problem in the workforce with harassment/discrimination, steps must be taken to support a trans employee with any allegations they may come to you with. Having a clear incident reporting procedure for incidents of harassment will help to create a safe environment for trans employees to disclose any harassment or discrimination. It is important that this is confidential and dealt with by an appropriate person. There should also be options for the employee to deal with this in a way which works for them personally. 

    Create a change in culture  

    Whilst changing the culture in the workforce does not happen fast, several steps can be taken to start this process and help to make your workplace a trans-inclusive environment. This may include rolling out training on trans issues across the organisation which is regularly refreshed to remain relevant in the workplace. Having inclusivity at the forefront of the organisation’s image aids greatly in provoking a culture change. This can be done through the use of pronouns organisation-wide; posting pro-trans statements on social media and company intranet etc; running training and learning sessions; having clear policies; and having gender-neutral toilets. Engage with trans employees and listen to ensure they feel safe and that they belong to monitor the effectiveness of these measures.