A recent study on behalf of ACAS has highlighted how companies are failing to deal effectively with complaints of sexual orientation discrimination in the workplace. Employers can learn valuable lessons from recent tribunal cases and the employment practices of companies making this year’s Stonewall’s Workplace Equality Index.
Protection from discrimination and harassment on the grounds of sexual orientation came into force in December 2003 under the Employment Equality (Sexual Orientation) Regulations. The Regulations cover the gay, lesbian and bisexual population, estimated to be at 6% in the UK. Claims can also be made by heterosexual individuals who have been subjected to less favourable treatment either because they are perceived to be gay or owing to their association with gay people.
Between January 2004 and September 2006, 470 individuals brought tribunal claims under the sexual orientation regulations, mostly alleging bullying and harassment. Just recently a number of successful claims have reached the headlines, including:
- CP Publishing in Glasgow was ordered to pay £120,000 in compensation to a former employee after he suffered humiliation and dismissal for being gay. The employee claimed he was subjected to bullying, harassment and offensive comments, including being told he was psychologically imbalanced when he was sacked by phone after just 8 days in employment. As a result of his treatment the employee has suffered from depression and alcohol problems and says his career prospects will now be adversely affected by this episode in his employment history.
- A tribunal has found that leading retailer Next failed to provide adequate protection to a lesbian employee based at a store in Merseyside. Although the employee raised a grievance, her complaint was not dealt with and 14 months later she resigned and claimed constructive dismissal and discrimination. The shop worker was awarded an undisclosed sum of 6 figures following her ordeal of homophobic harassment by her colleagues who called her a "****ing dyke". In particular, one co-worker, a Jehovah Witness, also questioned the lesbian lifestyle and the fact that the employee was raising a child in a cohabiting relationship with another woman.
- Two lesbian nurses have received a record payout, between £350,000 and £500,000, following their dismissal from Barchester Healthcare, which left them unable to work, suffering from panic attacks and in need of counselling. Both were dismissed for gross misconduct on the back of an anonymous allegation that they had allowed residents of the care home to be physically and sexually abused. The tribunal heavily criticised the employer’s handling of the matter, which if properly investigated would have revealed no possible cause for concern, and held the accusations unfounded. The tribunal were not satisfied that a heterosexual couple would have been treated the same and decided that the employer’s conduct was discriminatory based on the employee’s sexuality and their status as a couple. Barchester Healthcare unsuccessfully appealed the decision.
In order to bring a claim, an employee must follow the statutory grievance procedure and attempt to resolve their complaint internally. However, the ACAS report, based on research conducted by the Institute for Employment Studies, has revealed that employees who have tried to resolve disputes in the workplace often face victimisation in the form of demotion or dismissal or other treatment forcing their resignation. The report also highlights a common trend with the complainant being made to feel that they were the problem rather than the victim.
Typically, those who have brought tribunal claims have done so as a last resort with justice rather than financial compensation being the main motivation. The tribunal claimants’ experiences of workplace grievance procedures reveal:
- Unnecessary delays
- Involvement of unsuitable managers
- An unwillingness amongst staff to act as a representative
- Unnecessary bias in the hearing
However, according to lobbying group Stonewall, certain companies are making progress in tackling sexual orientation discrimination and promoting equality in their workplaces. IBM has this year been ranked first in the annual Workplace Equality Index of the top 100 gay-friendly employers in Britain. Other noteworthy employers include Lloyds TSB, Goldman Sachs and KPMG together with a number of public sector organisations, top of which was Staffordshire Police. The employment practices shared by those making the list include monitoring the sexual orientation of employees, providing diversity training, advertising in the gay press and supporting gay and lesbian events or organisations.
Employers should regularly review the effectiveness of their equal opportunity and harassment policies. ACAS have produced a tool which can be downloaded from their website (www.acas.gov.uk) to help organisations audit sexual orientation in the workplace to improve equality. This could be your company’s opportunity to avoid being named and shamed in an employment tribunal and appear instead on next year’s list of fame.