Last reviewed 9 August 2017
Deborah Moon, HR Consultant, looks at a recent TUC report on the experiences of LGBT+ workers in the UK and the resulting recommendations.
This year marks the 50th anniversary of the Sexual Offences Act 1967, the legislation which decriminalised most homosexual acts in private in England and Wales (similar legislation was enacted at later dates in Scotland and Northern Ireland). Protection against discrimination on the grounds of sexual orientation was first introduced into Great Britain in 2003 by the Employment Equality (Sexual Orientation) Regulations. This prohibited direct and indirect discrimination, harassment and victimisation on those grounds, protection which is now provided for under the Equality Act 2010.
There is no doubt that during this period there has been considerable progress in changing attitudes to and increasing the acceptance of homosexuality and sexual orientation, both in the workplace and in society more generally. But, despite this cultural and attitudinal shift, difficulties and concerns still remain, with equality of opportunity and treatment not necessarily the experience of lesbian, gay, bisexual, transgender people and those of other gender/sexual minorities (LGBT+).
The TUC has undertaken research to better understand the experiences of LGBT+ workers across the UK and its resulting report, The Cost of Being Out at Work, provides both statistical evidence of, and illustrative insights into, the extent, nature and forms of discrimination and harassment still encountered in the workplace. It demonstrates the negative impact this can have but also provides some positive examples. It concludes with a number of recommendations for Government, employers and trade unions which, it considers, will further improve and support the position of LGBT+ workers.
Background to the report
The report is based on the outcomes from research conducted between March and May 2017. An online survey was used to reach as many LGBT+ people as possible, including those who are not part of a trade union. It was also promoted on social media. It received 5074 responses, providing comprehensive statistical data and illustrative information about the experiences of LGBT+ workers.
The report reflects on the fact that few representative national surveys exist of LGBT+ people. It refers to research from the Office for National Statistics (ONS) which summarised the characteristics of LGBT+ people in the UK. It sets out the proportionate differences between the characteristics of the respondents to the TUC survey and the ONS statistics regarding the national population of LGBT+ people, ie by gender (male/female), age band, ethnicity (white and BAME) and country. It indicates that its survey slightly under-represents LGBT+ people from a minority ethnic background and younger LGBT+ people (the age bands used by the respective surveys also vary). However, it considers that, as there are only “slight differences” in the respondents to its survey from the ONS, the findings in the report provide an “important insight” into the working lives of LGBT+ people in the UK.
The report also refers to some other surveys which have shown similar results to its research. For example, it refers to a 2013 report Gay in Britain by Stonewall, which showed the same proportion of lesbians who are “out” to no one at work (6%), as well as far higher levels for bisexual respondents. It also indicates that the variations between the treatment of different types of LGBT+ workers shown by its survey was highlighted in a 2016 study by Professor Alan Bryson of UCL on pay differences between workers, which concluded that “the attitudes of both employers and employees towards bisexual employees lag behind the positive developments there have been with respect to perceptions of homosexual employees.”
Coming out at work
The first section of the report provides a number of statistics about the extent to which respondents are “out”, ie open about their sexuality, at work.
Just over half (51%) of all respondents are out to everyone at work. However, this falls to just over a third (36%) of young people.
The majority of respondents reported that they were out to someone at work. Only 13% reported that they were out to no one at all. However, this percentage rises for young people (20%) and for those on zero-hours contracts (22%).
Around 6% of lesbian and gay respondents reported that they were out to no one at work; However, over a quarter (27%) of bisexuals reported that they were not out to anyone at work.
Just under a quarter (23%) of all respondents had been outed against their will. Thirty per cent of transgender respondents reported that their trans status had been disclosed against their will.
Responses to an open-ended question about coming out indicated that this decision was significantly influenced by the likely reaction of others.
A number of bisexual workers who are in a relationship with a person of the opposite sex said they often let their colleagues assume that they are heterosexual.
The report comments that the findings referred to above in relation to young people and those on zero-hours contracts relate to groups of workers who are likely to have less job security and shorter tenure with the same employer and who may therefore feel reluctant to disclose anything which could “single them out or jeopardise their employment”. It also suggests that the above statistic in relation to lesbian and gay respondents may indicate there is a higher level of “acceptance” for the more “established” sections of the LGBT+ community than for others.
Experiences in the workplace
The report goes on to look at the various experiences of LGBT+ workers in the workplace, both negative and positive, and the impact this can have on those subject to certain types of attitudes and behaviours:
Over three-fifths (62%) of all respondents had heard homophobic or biphobic remarks or jokes directed to others at work, while over a quarter (28%) had had such comments or jokes directed at them personally.
Of those who had experienced this and other types of harassment, two-fifths cited a colleague as the main culprit.
The report indicates that, in open-ended questions, some respondents commented that such harassment is often dismissed as “banter” and so allowed to continue. Respondents’ comments also highlighted the negative impact of working in an environment where highly sexualised and/or homophobic “banter” is the norm. The accompanying illustrative comments describe, among other things, feeling a lack of confidence and lack of self-esteem and of being “pushed further into the closet”.
Harassment at work
The report sets out the Equality Act 2010 definition of harassment, ie unwanted behaviour which is related to a relevant protected characteristic, such as sexual orientation, sex, or gender reassignment, which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It also refers to the similar definition of sexual harassment in relation to unwanted conduct of a sexual nature. However, as the report indicates, the motivation for harassment is not always clear to either the perpetrator or the victim — there may be a number of motivations for such behaviour. It suggests that the “lines” between homophobic harassment and sexual harassment may not always be clear, citing as an example, a lesbian woman who may be subject to both sexual harassment and harassment relating to her sexuality at the same time and by the same perpetrator. It refers to the fact that some respondents commented that it was not always clear why they were being “singled out” for harassment, and that, while some of the harassment outlined by respondents was clearly linked to their sexuality or transgender status, much of that reported by lesbian and bisexual women respondents could be categorised as both sexual harassment and harassment relating to sexual orientation.
As the report also reflects, workplace harassment can take place in a range of different locations, with social media and email increasingly playing a part in this (there have also been a number of media reports of this type of online harassment across society more widely and in relation to a range of different groups who have been on the receiving end of such behaviour). As well as taking different forms and occurring in a wide range of settings, harassment may be perpetrated by various different people including managers, colleagues, clients, and customers (the latter two are known as third-party harassment — see below).
In terms of statistical information, the research found that:
nearly two in five (39%) of all respondents had been harassed or discriminated against by a colleague, and a quarter (29%) by a manager
almost half of transgender people (48%) had experienced bullying or harassment at work compared to just over a third (35%) of non-trans respondents.
The report notes that many bisexual women reported feeling that they were targeted for sexual harassment because they were perceived as promiscuous. It provides illustrative examples of the types of behaviour experienced, including that, for some women, the harassment tipped into sexual assault and threats of rape.
As noted above, the perpetrator of workplace harassment may be a service user, client or customer. Almost 15% of respondents to the survey who had experienced discrimination at work said this came from a client or patient. One example given is of a respondent working in education who had experienced a homophobic incident involving a student.
The report suggests that management may be reluctant to tackle third-party harassment for fear of offending or antagonising customers or service users. It provides an example of a health worker who reported that a patient had requested that no gay staff look after them for “religious reasons”, indicating that clearer guidelines about the rights and responsibilities of patients would be helpful. It notes that many respondents said they would like to see clearer policies, without which they felt they were “open to discrimination” (the difficulties and sensitivities for employers in managing what can sometimes be conflicting views regarding sexual orientation from those with strongly held religious views have been highlighted in a number of employment law and other service provision cases).
The report also suggests that where the perpetrator of harassment or discrimination is not an employee, victims may be reluctant to report the incident because there is a perception that it will not be dealt with in the same way as it would be if the unwanted behaviour came from another employee (see Reporting incidents, below).
The Equality Act previously contained a provision which made employers potentially liable in defined circumstances for the harassment of an employee by a third party. However, this was repealed with effect from 1 October 2013. Nevertheless, this does not mean that an employer can never be held liable for third-party harassment — the general harassment provisions in the Act are likely to be sufficient to allow for such liability. In any event, employers should take all reasonable steps to prevent all forms of harassment and, if third-party harassment does occur, take appropriate steps to communicate to the perpetrator that such conduct is unacceptable and must not continue or recur.
Many public sector organisations are likely to have such arrangements, such as signage in a reception/waiting room, or other public area, which makes clear that unacceptable behaviour towards staff will not be tolerated. This is likely to be particularly important in organisations where there are high proportions of staff in customer-facing roles and/or roles which may be particularly vulnerable to such behaviours. However, as the report notes, taking prompt and appropriate action if and when such behaviour does occur is vital if the employer is to discharge its duty of care and if staff are to have confidence that they will be appropriately protected in these circumstances.
The report then goes on to consider the proportion of respondents who have reported incidents of harassment or discrimination at work, the reasons for not doing so, and the outcome in cases where they did.
Only a third of respondents (34%) had reported the latest incident of harassment or discrimination to their employer. One in eight (12%) had reported it to HR.
Fifteen per cent of those respondents who were union members and who had experienced discrimination or harassment said they had reported this to their union.
The majority of respondents chose not to report incidents of discrimination or harassment, either for fear of reprisals or because of a reluctance to continually have to challenge such treatment.
Where incidents were reported, only one-third of respondents felt that the issue had been resolved, while one-fifth believed that they had suffered as a result of making a complaint.
The report notes that, while some respondents had positive things to say about the support they received from their HR/personnel department, many others had criticisms of the response they received, with illustrative examples provided, eg suggesting there was nothing which could be done about this or where no action was taken. HR professionals will, no doubt, be concerned to read of this and will wish to ensure that any complaint is treated seriously, with an appropriate response provided, including making available any additional support and advice/guidance.
The report also suggests that the “challenges” presented by the incident reporting process may act as a deterrent, with some respondents indicating that the process of putting in a grievance was so complicated that it added to their emotional distress.
As well as HR, trade unions are another potential point of referral for reporting incidents of harassment or discrimination and can also be a source of support for those who have experienced this type of behaviour. The report considers the responses with regard to union involvement — it indicates that, while many workers feel they have been well supported by their union, others reported that they felt their union representative could have done more. The issue of how unions deal with complaints against other union members is also referred to, recognising that this can be a difficult issue for a union where both the victim and alleged perpetrator are members.
The report also notes that a small number of respondents who were also union representatives felt that their status as a “union activist” had an impact on their treatment at work, although the type of impact varied considerably. However, others felt that their involvement in the trade union protected them from “mistreatment”.
In some instances, respondents had chosen to report incidents to the police rather than to their employer (something employers would, no doubt, generally wish to avoid occurring).
All of these responses and comments reaffirm the importance for employers of having clear and effective processes for reporting alleged incidents, and of taking prompt and appropriate action when this occurs. It also indicates the value of involving trade unions who can provide additional (or alternative) support and who may help develop and maintain confidence among employees that any complaints will be taken seriously.
Although the level and nature of responses and outcomes referred to above are clearly matters of concern, the report also notes that a “significant number” of respondents expressed positive feelings about their workplace, with illustrative examples given which reflect this type of experience. As noted previously, while homophobic, biphobic and transphobic attitudes are still prevalent in society, there has been much change over recent decades, with attitudes towards LGBT+ people and relationships having “shifted” a great deal. The report notes that this is reflected in many of the comments made by respondents to the survey, for example, in attitudes toward women and bisexual people, in greater workforce diversity, and in the support provided where harassment has been experienced.
It also notes that respondents referred to the importance of having a strong, well-implemented diversity and inclusion policy in creating a supportive work environment, and in helping develop a culture of “tolerance and acceptance”. Most, if not all, public sector organisations will have well-established policies of this type but there is a need to ensure that these are reflected in actual behaviours at all levels in the organisation.
Factors which may increase vulnerability
The report also considers the position of certain groups of LGBT+ employees who may feel particularly vulnerable to discrimination or harassment.
Casual or zero-hours workers
The report notes that while only a small proportion of respondents to the survey (less than 5%) described themselves as working on a casualised or zero-hours contract, the comments made in response to open-ended questions suggested that those who are engaged in “more precarious forms of work” are particularly aware of their “vulnerability” in terms of employment status. The report suggests that this may act as a deterrent to making a complaint or raising a grievance. The illustrative examples include references to effectively having “no rights at all”, and not wanting to “rock the boat”.
The growing use of casual and zero-hours contracts and other atypical forms of employment has been the subject of much deliberation and debate, including in the run-up to the recent General Election, with all three main political parties making reference to this issue during their campaigns and within their manifestos. Indeed, the Labour Party manifesto included a commitment to ban the use of zero-hours contracts.
Last year the then Conservative Government commissioned a review, led by Matthew Taylor, of modern employment practices, and the resulting report has recently been published. The report focuses on the concept of “good work”, not just in relation to the various forms of new and more flexible labour, but “good work” in general. The report makes a number of recommendations, including in relation to zero-hours contracts. While not going as far as proposing a ban on this type of working arrangement, it recommends creating a right for those on zero-hours contracts who have been in post for 12 months to request a contract that guarantees hours which better reflect the actual hours worked. At the time of writing, it is not known if or how the Government will be taking this recommendation (and others in the report) forward.
One in ten respondents to the survey identified as trans. Of these:
over a quarter had not transitioned
two-fifths had transitioned in their current workplace.
The report notes that many trans worker respondents reported feeling accepted and supported at work, but some had experienced harassment relating to their gender identity.
Some reported experiencing problems trying to arrange time off for gender reassignment surgery with their employers. Breaches of confidentiality by management were raised by 3% of respondents.
Disability and mental health
While the TUC survey did not specifically ask about disability or mental health issues, the report notes that a number of respondents discussed the discrimination they experienced as a result of these factors as well as being LGBT+. The report suggests that disability or mental health issues may increase the extent to which LGBT+ workers are viewed as an “easy target”. The accompanying examples illustrate this point, with reported incidents of both verbal and physical abuse and being “singled out” due to both sexuality and mental health/disability issues.
There have been increasing concerns about the growing incidence of people experiencing mental health problems, with a recognition by employers of the impact this can have in the workplace and the need to address this as part of a broader approach to employee wellbeing. The particular pressures placed on public sector workers, particularly those involved in delivering services to vulnerable groups and in challenging situations, have also been acknowledged. The impact of funding reductions and in seeking to manage the provision of services at a time of reduced resources and increasing demand are also likely to add to such pressures. These factors may increase the vulnerability of minority workforce groups, and employers will, no doubt, wish to ensure that appropriate monitoring and support mechanisms are in place.
Addressing the impact
While acknowledging that many LGBT+ workers who responded to the survey reported positive experiences at work, the report goes on to consider the significant impact experiencing or witnessing some form of homophobia, biphobia or transphobia at work can have on those individuals, their families and their work.
Fifty-two per cent of respondents who had experienced discrimination or harassment at work reported that it had had a negative impact on their mental health.
A third said that it had had a negative effect on their performance at work.
Twelve per cent reported they had left their job in the last five years because of such treatment.
One quarter said they wanted to leave their job but couldn’t because of financial or other reasons.
One quarter said that the harassment or discrimination caused them to avoid certain work situations such as particular locations, meetings or courses.
Illustrative examples include being unable to sleep, high blood pressure, deep depression and anxiety.
As the report notes, it is clearly in the best interests of employers and LGBT+ workers to ensure that all workers feel safe and supported in the workplace. Describing this as a “priority” for employers, it indicates that this is a situation which the TUC is “determined to address”.
The report concludes with a series of recommendations for Government, employers and trade unions on how LGBT+ workers can be better supported in the workplace.
Ban zero-hours contracts. Individuals who work regular hours should have a right to a written contract guaranteeing their normal working hours (see previous comments relating to this issue under Casual or zero-hours workers, above).
Abolish employment tribunal fees which act as a “significant barrier to accessing justice” in discrimination cases (at the time of writing the Supreme Court’s decision in the case brought by UNISON, challenging the introduction of tribunal fees, had just been published. The Court ruled that the fees are unlawful and that the legislation which introduced them must be quashed. Responding to this judgment, the Government indicated that it would cease taking fees for employment tribunals “immediately” and begin the process of reimbursing claimants, dating back to their introduction in 2013. Welcoming the judgment, the TUC described this as a “victory for workers’ access to justice”).
Promote the importance of LGBT+ inclusive equality training in all sectors.
Make sex and relationships education (SRE) statutory in all schools (with no exemption for faith schools) and ensure that it is LGBT+ inclusive, ensure that education and awareness on LGBT+ equality starts early and tackles homophobia, biphobia and transphobia.
Ensure that the Equality and Human Rights Commission (EHRC) has sufficient funding and resources to promote LGBT+ rights, to carry out investigations in sectors where LGBT+ discrimination is identified as a problem, and to take more strategic legal cases.
Legislate to place a duty on employers to protect workers from third-party harassment (given the relatively recent change in the legislation relating to third-party harassment (see above), this change would seem unlikely).
All employers should have an equality policy in place and this should be updated to include trans workers. This should be rolled out across the organisation so that the whole workforce understands the policy and their role in ensuring the workplace is supportive and free from harassment and discrimination.
Equality training should be mandatory for all staff to ensure there is a good understanding of these issues across the organisation. Where possible, this should be delivered by a provider who specialises in this area of equality.
Workplace policies should be reviewed, with the relevant unions’ input if there are recognised unions (or an LGBT+ staff network if the workplace is not unionised), to ensure that complaints can be resolved in as short a timeframe as possible.
Take a “zero tolerance” approach to all forms of discrimination and harassment. This should include workplace policies and training, including what “bystanders” can do to challenge harassment. Where such incidents do occur there should be clear disciplinary procedures in place for the perpetrator and support for the victim.
Develop mentoring and coaching schemes for LGBT+ staff so they are able to access development opportunities and support networks in the workplace.
Most, if not all, local government and other public sector organisations are likely to have comprehensive equality policies and procedures in place and are, of course, subject to additional requirements under the Public Sector Equality Duty. Many will also provide supportive staff training and may have staff network (or equivalent) groups in place. They are also probably likely to involve recognised trade unions in the development and review of those arrangements. Nevertheless, the report provides an important reminder of the need to ensure these are properly communicated across the organisation so that all staff understand their rights and responsibilities and that there are timely and effective processes in place to address any incidents of unacceptable behaviour.
Develop guidance for representatives to support LGBT+ workers who work with third parties.
Review training for union representatives on transgender and other sexual and gender identities.
Encourage union representatives, equality representatives and LGBT+ officers to undertake training on equality legislation.
The report also provides a useful list of further sources of information and support.
Towards a more inclusive and tolerant workplace
The report reflects that the research from the survey indicates a “stark picture”, with workplace incidents of bullying, harassment and discrimination linked to sexuality and gender identity still “alarmingly prevalent”. It also highlights how many workers face multiple discrimination based on their sexuality, sex, race, disability or age and how those in “the most precarious position”, such as workers on casualised contracts, may face additional barriers in challenging discrimination in the workplace.
Commenting on the report, TUC General Secretary Frances O’Grady said:
Britain is fast becoming a more equal and accepting country. But it’s shocking that in 2017 so many lesbian, gay, bi and trans people around the UK still experience discrimination and harassment at work just because of their sexuality or because they are trans.
Let’s be clear — homophobia and transphobia at work is undermining, humiliating and can have a huge effect on mental health. LGBT workers are often left feeling ashamed and frightened. It has no place in a modern workplace, or in wider society.
Employers must be clear that they have a zero tolerance attitude to harassment of their LGBT staff — and stand ready to treat any complaint seriously.
As indicated previously, there is no doubt that the last 50 years has brought about a much more open and inclusive society, with greater levels of understanding and acceptance of the diversity within our communities, not just in relation to sexuality but in other areas such as race and disability. There are many examples of people from all walks of life feeling more confident about their sexuality and prepared to speak openly about this. But, at the same time, there are many other examples, including in the workplace, suggesting that this is still not the case.
The challenge for employers is to ensure the development of a workplace culture which promotes an open and inclusive approach, which values the benefits of a diverse workforce, and which makes clear that prejudice, harassment and discrimination will not be tolerated. The consequences of failing to do so can be very damaging, for individuals and their families and for organisations.
The Cost of Being Out at Work available on the TUC website at www.tuc.org.uk
Good Work: The Taylor Review of Modern Working Practices is available at www.gov.uk
Deborah Moon is a Consultant in Human Resources and is a regular contributor to Croner-i HR for Local Government. Croner-i HR for Local Government is an online employment law and practice reference source designed specifically for HR Managers and their teams in local government.