This section explains the law on protecting lesbian, gay and bisexual workers from discrimination at work and suggests some ways in CSP stewards and managers can promote equality in practice
On this page:
- What is meant by ‘sexual orientation'?
- Are LGB+ workers legally protected from discrimination?
- What things count as sexual orientation discrimination in law?
What is meant by ‘sexual orientation?’
Sexual orientation describes a person’s sexual attraction to other people (or lack thereof). It is separate from their gender identity. This section on sexual orientation therefore uses the acronym LGB+, as opposed to LGBTQIA+, which refers to a wider group including people who are trans or have other gender identities.
The 2021 Census revealed that, while the vast majority of adults in England and Wales describe their sexual orientation as heterosexual or straight, 3.2 per cent identify as gay, lesbian, bisexual, or another sexual orientation LGB+.
Sexual orientation is a protected characteristic (internal link to main bite-size on equality law) under the Equality Act 2010. It is unlawful to discriminate against someone on grounds of their sexual orientation - or what someone thinks is their orientation, even if that is incorrect.
The Equality Act covers England, Wales and Scotland, while Northern Ireland has its own regulations on sexual orientation discrimination.
The types of employer conduct that might be considered sexual orientation discrimination under the law range from the more obvious – turning someone down for a job because of their sexual orientation – to procedures which indirectly disadvantage LGB+ people.
The most obvious form of unlawful sexual orientation discrimination is when the employer treats someone “less favourably” than they would a straight person. This is direct discrimination.
An example could be an employer failing to appoint someone because she is a lesbian, even though she has all the skills and competences required. Even if the woman did not say she was lesbian, but was thought to be and not appointed as a result, this would still count as direct discrimination.
But discrimination doesn’t have to be that obvious to be unlawful. An employer might be guilty of indirect discrimination if it has a way of operating that works to the disadvantage of individuals of a particular sexual orientation.
An employer who allows harassment of an employee because they are LGB+ (or straight) can also be guilty of unlawful discrimination under the Equality Act. Harassment includes behaviour that is intimidating, hostile, degrading, humiliating or offensive.
If an employer treats someone differently because they have previously complained about sexual orientation discrimination, they may be guilty of unlawful discrimination in the form of victimisation.
For LGB+ workers, concealing their sexuality at work can seem easier in the face of enduring prejudiced attitudes in some quarters. However, doing so can impact on their ability to function well at work and to participate fully within the team. Ultimately it can affect their health and well-being.
The CSP expects stewards and managers to ensure that LGB+ staff who are coming out at work are supported.
The CSP's LGBTQIA+ network provides opportunities for members to share information and provide peer support.
Stewards have a key role in creating an inclusive culture at the workplace, in which LGB+ workers feel as comfortable as straight workers, and where possible should challenge homophobic attitudes.
Stewards should ensure that bullying and harassment policies take account of sexual orientation, are strong and are properly implemented.
They should also check that workplace policies and procedures do not indirectly discriminate against LGB+ and trans staff, especially where there is discretion in their implementation. For example, where workers are allowed some discretionary carers or bereavement leave, make sure this applies evenly to straight and LGB+ staff.
Checklist for managers
- Be clear on how you stand on homophobic behaviour and discrimination. Be prepared to challenge and/or report homophobic remarks, jokes or behaviour. It is a manager’s responsibility to ensure that all staff are treated equally and are not subjected to discrimination or harassment
- Be prepared to act decisively when you encounter inappropriate behaviour. The NHS is committed to tackling all forms of discrimination and it is part of your job to carry this out at local level
- Ensure you are aware of your Trust’s policies on procedures on harassment, bullying and discrimination
- Organise training, information sessions and discussions on the issues
- Encourage staff to participate in outside courses or events which may broaden their knowledge
- Examine the service you provide. Are you meeting all the needs of your client groups?
- Where there is discretion over terms and conditions such as carers’ leave are you applying a fair and equal standard to employees in same sex relationships?
- Encourage LBG staff to join the CSP LGBTQIA+ network and if possible allow study leave to attend the biannual meetings
Checklist for stewards
- Be clear on how you stand on homophobic behaviour and discrimination. Be prepared to challenge homophobic remarks, jokes or behaviour as part of your steward’s role
- Educate yourself about the issues so you are in a position to give at least some initial advice
- Educate members – organise speakers or a short training session for one of your meetings. Informal discussions can be a vital part of education and a short conversation with a member will be more effective than a long lecture!
- Distribute information and posters which advertise union and equality messages and events, including information about the CSP LGBT+ network
- Challenge management – make sure there are equality policies and they have a firm commitment to putting them into practice
- Check all Trust policies to ensure that they do not discriminate against LGBT+ staff and if they need revising raise at the Joint Negotiating Committee
- Ensure there are anti-harassment, bullying and discrimination policies in place and they are widely publicised
- Put pressure on management to organise training and diversity courses
- Take up cases on behalf of members. These may be difficult, but the CSP Employment Relations and Union Services (ERUS) Department Officers will support you. This may involve using specific procedures or a more general grievance procedure. 99 Occasionally the case may go as far as an Employment Tribunal, in which case the CSP’s solicitors will be involved.
- If you think you may have an ET case, be aware of time limits and discuss with your SNO at the outset
- Make sure your members are aware of the CSP network for LGBT+ members and how to join