Today the LGBT Community and their allies come together in Edinburgh to celebrate Pride and to mark the struggle for LGBT equality.
As Employment and Discrimination lawyers it is clear to us that there is a long way to go in ensuring the equality and safety of LGBT workers in the workplace. A 2017 report from Stonewall Scotland uncovered some alarming statistics. This research found that 36% of LGBT workers and concerning 58% of trans workers have hidden their identity due to fear of discrimination. The research also found that 16% of LGBT workers and 40% of trans workers in Scotland have experienced negative comments or conduct from colleagues whilst at work within the last year.
Although these statistics are troubling, LGBT workers do have a remedy against their employers if they have been discriminated against or harassed in the workplace and can raise actions in the Employment Tribunal. Workers should bear in mind that they have to adhere to strict time limits to ensure that their claim is not time barred. Claimants have 3 months minus one day from the ‘last act’ of discrimination or harassment to raise a claim.
If a person identifies as LGBT, they are likely to be considered to have a ‘protected characteristic’ under the Equality Act 2010. The protected characteristics most relevant to LGBT workers are ‘gender reassignment’ and ‘sexual orientation.’ Trans and non-binary people should note that section 7 (1) of the Act defines ‘gender reassignment’ as where a person ‘is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.’ Hence trans people who have not started to transition and non-binary people may not fall within this legal definition.
The statistics from Stonewall suggest that harassment in the workplace is not uncommon for LGBT workers. Harassment is legislated for under section 26 of the Equality Act 2010. Under section 26 (1) a person harasses another if they engage in unwanted conduct related to a protected characteristic and that conduct has the purpose of effect of violating that person’s dignity or creating an intimidating hostile, degrading, humiliating or offensive environment. Section 109 provides that an employer is liable for the acts of its employees provided that the harassment was done in the course of their employment.
Although the Equality Act 2010 offers some protection to LGBT workers, in some cases the law falls short. As already mentioned trans and non-binary people who have not or do not intend on transitioning may not fall within the protected characteristic of ‘gender reassignment’. In addition the strict time limits for raising an Employment Tribunal claim can often mean that workers are time barred from raising such an action. Nevertheless the Equality Act 2010 can be utilised to secure justice for LGBT workers. As Employment and Discrimination lawyers Thompsons are committed to fighting for the rights of all workers who have been discriminated against or harassed the workplace.
Blog by Alice Bowman