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.
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.
