LGBT Rights in the Workplace

The main legislation which protects LGBT+ employees in the workplace is The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. This act protects everyone from discrimination on the grounds of sexual orientation or gender reassignment.

Sexual orientation relates to identifying as gay, lesbian, heterosexual or bisexual, someone thinking you have a particular sexual orientation or being connected to someone with a particular sexual orientation.

Gender reassignment protects those whose gender identity is different from the sex assigned to them at birth. To be protected from discrimination you can be at any stage of the transitioning process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it, and you do not need to have undergone any specific medical treatment or surgery.

Although The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 exists, CIPD research finds that LGBT+ employees are still more likely to experience conflict and harassment in the workplace. 40% of LGB+ workers and 55% of trans workers reported experiencing such conflict, compared with 29% of heterosexual, cisgender employees. In addition,16% of LGB+ workers and 18% of trans workers said they feel psychologically unsafe in the workplace compared with 10% of heterosexual workers.

The definitions of sexual orientation and gender reassignment set out in The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 can be seen as limited as it does not cover the full scale of identities recognised today in the acronym LGBTQIA+.

The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 does not mention those who are non-binary, gender fluid, intersex, pansexual or asexual etc. but the act does protect individuals from perceptive discrimination i.e. you must not be discriminated against because of your perceived sex or perceived gender reassignment. This will be demonstrated further in the Taylor v Jaguar Land Rover Case below.

LGBT+ Employment Tribunal Cases and Their Significance

McMahon v Redwood TTM Ltd & Pilling (2018)

McMahon, a lesbian employee, was told by her Managing Director during her first week of employment to hide her sexuality. He said this was necessary because the business owner was ‘old school’ and no other employees were members of the LGBT community. McMahon complied as she was a new employee but felt uncomfortable as it meant she couldn’t be open about aspects of her personal life with other employees.

After eight months of employment, McMahon was made redundant along with several other employees and decided to take legal action against Redwood for discrimination.

UK Employment Tribunal judged that although the managing director was not homophobic, McMahon had been directly discriminated against on the basis of her sexual orientation as the same request would not be made of a heterosexual employee. McMahon was awarded £8,000 plus interest for injury to feelings.

Although McMahon did not receive any apparent unfavourable treatment due to her sexual orientation or any overt homophobic comments, the tribunal still found she had been directly discriminated against. This is significant for LGBT rights as it shows employment tribunal takes any difference in treatment seriously.

P Allen v Paradigm Precision Burnley Ltd and Carl Wheeler (2020)

Mr Allen joined Paradigm Precision as a Quality Manager in 2012 and in 2018 Allen believed he was soon going to be promoted to General Manager. Around the same time Allen had made enquiries about adoption leave to his employer and HR as Allen and his partner were considering adopting a child. However, after these enquiries, Allen was no longer a candidate for the promotion due to the possibility of him being absent for 12 months on parental leave.

After disclosing his sexual orientation to HR, Allen’s colleagues became aware of his sexuality and began subjecting Allen to homophobic comments and gestures.

Allen resigned and brought legal action against Paradigm Precision claiming discrimination on the basis of sexual orientation. Employment Tribunal found that Allen had been harassed and directly discriminated against because of his sexual orientation. The judge also ruled he had been victimised and subjected to harmful treatment for wishing to take additional adoption leave, which resulted in constructive unfair dismissal. The judge awarded Allen £174,645 in damages.

Employers must ensure that they do not treat an employee differently after a disclosure relating to a protected characteristic such as sexual orientation. Also, it is important that matters such as promotions and pay increases are considered separately from issues relating to protected characteristics.

Ms A Taylor v Jaguar Land Rover (2020)

In 2017, Rose Taylor, an engineer at Jaguar Land Rover, publicly came out as genderfluid. However, shortly after Taylor began facing harassment, issues accessing toilet facilities and was referred to as ‘it’ by two colleagues. Taylor made a complaint about the colleagues but received no support from HR who commented "well what else would you want them to call you?"

Taylor later resigned from Jaguar and took the company to employment tribunal for discrimination.

Jaguar Land Rover argued that since Taylor did not identify as a different gender but instead as genderfluid this was not a characteristic protected under the Equality Act.

The tribunal found that gender reassignment is a personal journey moving from birth sex to another sex and anyone at any point along the spectrum is protected by the Act. The tribunal therefore ruled in Taylor's favour and Taylor was later awarded £180,000 in damages.

This case is significant for LGBT+ rights in the workplace as it disrupted the thinking that for the protected characteristic of gender reassignment to apply, an individual’s reassignment would have to be permanent or at least longstanding. As mentioned above, gender fluidity is not specifically mentioned in the Equality Act, but this judge ruled that a gender fluid employee did fall under the protected characteristic of gender reassignment.

Copacetic Business Solutions, offers LGBTQ+ affirmative HR & Employment Law Consultancy Services provided by members of the LGBTQ+ community and trained allies.

Individuals who are facing issues at work or businesses who wish to engage to improve conditions for their queer employees in line with their employment law obligations can contact copacetic here https://www.copaceticbusinesssolutions.co.uk/contact or call 07772 977023 for a confidential consultation.