LGBT+ discrimination at work

Sexual orientation discrimination and gender reassignment discrimination are illegal in the UK and are protected characteristics under the Equality Act 2010. It is discriminatory when someone is treated less favourably or put at a disadvantage for reasons related to their sexual orientation or because of gender reassignment.

While gender identity is not a protected characteristic, Taylor v Jaguar Land Rover Ltd was a UK employment tribunal court case in 2020 that ruled that non-binary gender and genderfluid identities fall under the protected characteristic of gender reassignment in the Equality Act 2010.

In terms of avoiding legal liability for discrimination, employers should assume that non-binary and gender fluid employees are protected under the Equality Act 2010.

Aside from the issue of liability and avoiding legal penalties, it is always in everyone’s best interest to create an inclusive working environment in which LGBT+ employees feel welcome and enable the organisation to capitalise on the benefits of a diverse workforce.

It is vital to understand the different types of discrimination that LGBT+ people can experience so that you know what your rights are under the Equality Act 2010. They are as follows:

• Direct discrimination– When you are treated less favourably because you are LGBT+, you are associated with someone from the LGBT+ community, or when someone thinks you are LGBT+
• Indirect discrimination– When a practice, policy or rule applies to everyone, but puts people from LGBT+ groups at a disadvantage.
• Harassment – When you experience unwanted behaviour because you are LGBT+ that either violates your dignity or has created a hostile work environment
• Victimisation – When you are treated differently or less favourably because you are involved with a sexual orientation or gender reassignment or harassment complaint

Homophobia, biphobia, and transphobia

• Homophobia is a dislike of or prejudice against gay people
• Biphobia is a dislike of or prejudice against bisexual people
• Transphobia is a dislike of or prejudice against transgender people

If you are experiencing homophobia, biphobia, or transphobia at work, you are experiencing discrimination.

Your employer has a responsibility to protect LGBT+ employees, workers, contractors, the self-employed and job applicants from discrimination and they must take steps to prevent it from happening.

Your employer is also responsible for the wellbeing of LGBT+ employees. If an employer is unsupportive of an employee who experiences discrimination at work because of their sexual orientation or because they are planning to, or have undergone a gender reassignment, they could be in breach of their employment contract, and could even face charges for constructive dismissal.

Employers also have a duty of care to ensure that employees aren’t disadvantaged at work because they are LGBT+.

Employers should take any complaints of sexual orientation or gender reassignment discrimination and any following investigations seriously.

Anyone who belongs to the LGBT+ community can experience discrimination based on their sexual orientation or gender identity.

Examples of discrimination could be being harassed because of your sexual orientation or being harassed because you have had a gender reassignment.

If you experience discrimination at work because you are LGBT+, this can be from anyone you encounter because of your job, including:

• Colleagues
• Your employer, manager, or anyone else who is in a position of authority at your place of work
• A member of the public like a client or customer

It is your employer’s responsibility to take steps to prevent LGBT+ employees from being victims of discrimination from happening, as well as act when it does occur.

LGBT+ discrimination can occur in person or online via email, social media, or messaging apps. This can occur as a one-off incident, or regularly. This can take on many forms, ranging from obvious sexual orientation or gender reassignment discrimination to less obvious interactions. The following can constitute: 

• Making inappropriate comments about a person’s sexual orientation or gender reassignment
• Telling jokes which are offensive to the LGBT+ community
• Putting heterosexual people ahead of LGBT+ people
• Viewing LGBT+ people as inferior
• Bullying someone because they’re LGBT+
• Mistreating someone for coming out as LGBT+
• Using homophobic, biphobic or transphobic language
• Hiring an employee over another because of their sexual orientation or gender reassignment
• Refusing to hire LGBT+ people
• Enacting workplace policies that unfairly disadvantage LGBT+ people
• Refusing to promote someone because of their sexual orientation or gender reassignment
• Making a worker redundant because they are LGBT+

Even if the perpetrator of the discrimination considers their behaviour to be in good faith or a joke, it is still classified as LGBT+ discrimination if their behaviour is:

• Of a discriminatory nature
• Unwanted
• Violating yours or someone else’s dignity or creates an intimidating or degrading environment at work

Discrimination is typically directed at an individual or group of individuals, but some workplaces can normalise a culture of LGBT+ discrimination e.g., discriminatory inappropriate “banter” between colleagues. You can still make a complaint of discrimination in this situation.

If you are the target of sexual orientation or gender reassignment discrimination at work, we recommend you do the following:

• Speak to your union (us!) or your Trade Union Representative
• Make a complaint to your employer (remember, it is their legal duty to protect your wellbeing at work, and to prevent sexual orientation and gender reassignment discrimination)
• Keep a note of any instances of discrimination, including dates/times or witnesses.
• Speak up – don’t be afraid to challenge prejudice and confront LGBT+ discrimination at work if you feel safe to do so

We would first advise that you speak with your Community Trade Union Representative to receive support when making a complaint about being the victim of discrimination at work.

Your employer may have their own discrimination policy to deal with any sexual orientation or gender reassignment discrimination in the workplace, so you should follow that procedure to raise a grievance.

This should be in the same place your workplace houses all your workplace policy on discrimination.

This should be somewhere easily accessible such as a staff handbook or company intranet.

It should outline how your employer deals with discrimination complaints and who to send your complaint to.

Your line manager or HR department should be able to provide you with a copy.

If you have raised a formal grievance of being the victim of discrimination because you are LGBT+ or the problem has not been resolved, you can make a claim to an employment tribunal. You should inform Community immediately if you intend to do this as our legal team may be able to provide advice and support you through this process.    

If you witness LGBT+ discrimination at work, we will always recommend that if you feel safe to do so, speak out against it. No one should feel afraid to confront discrimination in the workplace and by speaking out, you may also encourage other employees, and your employer to contribute to a more inclusive work environment for LGBT+ colleagues, and the wider LGBT+ community.

If you do not feel safe to do this, speak to us for support and advice on how to do this safely.

Following an incident of LGBT+ discrimination, you can:  

• Support any complaints made by the victim
• Report the incident to your Community Trade Union Representative and/or employer
• Make a discrimination complaint yourself if the incident has created an intimidating or degrading environment at work
• Keep a note of any instances of discrimination, including dates/times or witnesses.
• Talk to the victim to see if they want your support
• Learn more about the issues LGBT+ people experience at work with coming out, inclusion, mental health, pronouns and how to be an ally at work
• Become a Community Equalities Rep and help us fight against LGBT+ discrimination across the UK