24.05.2023
Pride Month 2023 will take place in the UK from 1 to 30 June, culminating in the Pride London parade on 1 July.
Pride Month as an event is intended to support, celebrate, provide visibility to and campaign for improved rights for lesbian, gay, bisexual, transgender, queer, questioning, intersex, non-binary, asexual, polysexual, genderqueer and gender variant (LGBTQIA+) people. Many businesses use Pride Month as an opportunity to demonstrate their support for their LGBTQIA+ staff, for example by posting banners on social media platforms and hosting staff events to embrace Pride in the workplace. This year, Pride UK recommends various themed workplace activities, including cake sales, panel discussions and art contests.
While celebrating Pride in the workplace can help to foster a more supportive and diverse staff community, creating a workplace culture which is genuinely inclusive takes time. Below, we look at some proactive steps HR can take to address issues affecting LGBTQIA+ staff and job applicants year-round.
Legal protections for LGBTQIA+ staff
Sexual orientation and gender reassignment are two of the nine “protected characteristics” covered by the Equality Act 2010. Under the Act, it is unlawful for an employer to directly discriminate against a job applicant or employee by treating them less favourably than others because of a protected characteristic (for example, because of their sexual orientation and/or gender reassignment). It is also unlawful under the Act to indirectly discriminate by applying a provision, criterion, or practice (“PCP”) which disadvantages protected individuals, unless the PCP can be objectively justified. In addition, the Act protects job applicants and employees from being harassed or victimised due to a protected characteristic.
Legal protection for the LGBTQIA+ community under the Equality Act is currently limited to the protected characteristics of sexual orientation and gender reassignment (although there is some debate around the scope of “sex” as a protected characteristic and whether that is, or should be, limited to biological sex). There is also some ambiguity regarding the precise scope of the sexual orientation and gender reassignment protected characteristics. For example, the definition of sexual orientation in the legislation refers to a person’s sexual orientation “towards” persons of the same sex, the opposite sex, or either sex. The Act does not appear therefore to protect those who are asexual (i.e. those who do not feel sexual attraction towards anyone), although there has not yet been any reported case law on this point. The issue of whether gender fluid/non-binary persons are protected by the Act has come under scrutiny, as the legislation does not directly address this. In Taylor v Jaguar Land Rover Ltd [2020], an employment tribunal held that a person who identified as gender fluid/non-binary was protected by the Act, although there are still some commentators who take a different view. This was a first instance tribunal decision only (and is therefore not binding), but we take the view that most people who do not feel they have conventional gender identities could be covered by the Equality Act under the protected characteristic of gender reassignment. This seems to be the likely direction of travel in equalities law and guidance and it is certainly good EDI practice to take an inclusive approach.
HR action points
With Pride Month on the horizon, now is a good time to reflect on whether there is more you could do to support LGBTQIA+ inclusivity at work throughout the year. Questions to consider include:
1. Do you show your commitment to diversity in job adverts and are your recruitment and selection processes fair and non-discriminatory?
2. Are your senior leaders actively engaged in driving diversity and supporting LGBTQIA+ employees? How could you better engage them?
3. Have you communicated clearly that you have a zero-tolerance approach to discrimination, bullying and harassment, including in relation to sexual orientation and gender identity?
4. Are your HR policies and procedures up-to-date (for example, your equality and diversity and anti-bullying/harassment policies and your terms and conditions of employment)? Do you use gender neutral language where appropriate and have you considered the scope and accessibility of your policies?
5. Have you trained all of your employees, in particular managers and HR, on how to support LGBTQIA+ employees and how to challenge any inappropriate behaviour towards them?
6. Could you work more closely with employee networks to understand LGBTQIA+ related issues in your organisation, including how members of the LGBTQIA+ community can better be supported at work? Do you have Diversity champions?
7. How could you better support transgender job applicants and employees? For example, do you allow transgender employees to use facilities which are appropriate to the gender with which they identify? Are you respectful of how individuals describe their gender identity, including which pronouns they prefer? Could you update your systems to include other gender identities in addition to binary options?
8. Do you know how to deal with potential difficulties that might arise where employees who hold “gender critical” beliefs (such as the belief that sex is immutable and should not be conflated with gender identity) seek to express those beliefs at work? Various recent cases have grappled with balancing the rights of transgender people with those who have “gender-critical” beliefs – see here and here.
An ongoing journey towards greater inclusivity
Last year marked 50 years since the first Pride was held in the UK and, this year (2023) will be 20 years since the repeal of Section 28 (a law that prohibited “the promotion of homosexuality” by local authorities). There is no doubt that there has been significant progress, both in the work environment and across society more broadly, over the last 50 years – such as the removal of the ban on lesbians, gay men and bisexual people serving in the armed forces in 2000, the prohibition of discrimination on the basis of sexual orientation in employment in 2003 and the introduction of gender reassignment as a protected characteristic in the Equality Act in 2010.
However, further improvements are still needed. According to a 2022 poll by the Trade Union Congress, one in five (21%) workplaces do not have any policies in place to support their LGBTQIA+ staff at work and research published in 2019 suggests there is approximately a 16% LGBTQ+ pay gap. In addition, research conducted for Just Like Us, the LGBT+ young people’s charity, in January 2023, reveals that a quarter (25%) of LGBT+ young adults said they “went back into the closet” when they started work, showing that there is a long way to go before all LGBTQIA+ people feel comfortable expressing their identity at work.
Taking active steps year-round to address issues relating to your LGBTQIA+ staff is key to building a sense of belonging and community at work. It can also reap significant benefits for employers in the long-term, as a work environment where everyone feels welcome and comfortable in their own skin will lead to improved employee wellbeing, with consequent decreases in sickness absence and increases in productivity. Employers that can demonstrate how they champion inclusivity at work will be more attractive to candidates from diverse backgrounds, something that may prove invaluable when it comes to recruiting and retaining talent in today’s competitive market. A genuine commitment to inclusivity at work can also help from a risk management perspective, as inclusive employers are less likely to face costly discrimination claims.
How we can help
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on supporting LGBTQIA+ job applicants and members of staff. You can also access further information about discrimination, harassment and bullying, including template policies and drafting guidance, in the HR & Legal Resources section of our website.
Make UK offers a suite of micro-videos exploring issues relating to this topic. We can provide general awareness training for staff, as well as more focused training for managers and HR, to increase awareness about issues relating to sexual orientation and/or gender identity. Please email Nicola Kibble ([email protected]) for further information or click here for more information about all of the ways we can support you with EDI+ related issues.
If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].