With each Pride month, companies unveil rainbow logos and send office wide emails of solidarity. These gestures are valuable, giving visible demonstrations of support, but only really make a difference if those companies are able to truly say that their policies and practices are inclusive and legally compliant. Being performatively pride-positive without real action is little more than virtue signalling but more seriously, could be a liability waiting to happen. A gap between messaging and practice tends to surface eventually in the form of a tribunal claim or grievance. Employees and job candidates are increasingly willing to check whether a company’s public messaging matches what actually happens within the business, and that scrutiny doesn’t disappear once June ends.
What the law requires
The Equality Act 2010 protects employees from discrimination and harassment based on sex, sexual orientation and gender reassignment (among other protected characteristics). This protection is far more wide reaching than the most obvious and overt types of verbal or physical abuse. An offhand comment, a policy that excludes certain people, or a manager who repeatedly and wilfully uses the wrong pronouns can all amount to unlawful treatment. Employers are responsible for the conduct of their staff in the course of employment. If someone is being harassed at work and the business hasn’t taken reasonable steps to prevent it, the liability doesn’t just fall on the individual causing harm.
For trans employees specifically, protection kicks in from the point someone decides to transition, not once any medical or legal process is complete (which is key, as not all trans individuals choose to undergo complicated medical procedures). It’s worth keeping in mind that disclosing someone’s trans status without their permission can be a serious matter and so ensuring early agreement on communications for an employee transitioning is important.
Creating an inclusive and compliant working environment can be more challenging in a context where you may have employees who have opposing but equally legally protected views, particularly in relation to gender identity. Caselaw is now clear that those with gender-critical and gender-inclusive views are both protected in law, which can leave employers in a difficult situation as there is a risk of creating a liability if they are found to be coming down in favour or one over the other without clear justification.
Getting this wrong is potentially costly for a business. Compensation for discrimination claims is uncapped but tribunal judgments are also published and therefore can cause reputational damage. This is likely to be even more the case if a company at the wrong end of a claim like this is one who has utilised a rainbow logo during Pride month.
If someone is being harassed at work and the business hasn’t taken reasonable steps to prevent it, the liability doesn’t just fall on the individual causing harm.
Policies are the starting point
Alone, an equal opportunities policy is not enough to satisfy legal obligations. In reality, policies are only useful if they are understood, applied correctly and consistently and supported by day-today behaviour. A tribunal is unlikely to be impressed by a well written policy if it is not followed seriously. Managers play a particularly important role here. They are often an employee’s first escalation point when something goes wrong, and the way they respond can significantly affect both the employee involved and the organisation’s legal position. That’s why training employees with line management responsibility is especially important to be able to identify and handle concerns correctly.
Employers should also make sure their recruitment practices are up to date. Job advertisements, interviews and selections should be free from assumptions about a person’s sexual orientation, gender identity and personal circumstances. It is worth thinking about whether your policies can be gender neutral, to avoid any sense of exclusion for some applicants from the outset.
Inclusive workspaces
Employment law compliance should be viewed as the minimum standard rather than the end goal; a workplace where LGBTQ+ employees feel respected and supported. Simple measures can make a meaningful difference. This may include profiles and HR systems accommodating different pronouns or creating clear reporting channels for concerns about discrimination and harassment (including the option of anonymous reporting). Importantly, these measures should not only be highlighted during Pride Month but remain part of the organisation’s approach throughout the year. When organisations treat inclusion as an ongoing responsibility rather than a once-a-year campaign, they are not only reducing legal risk but creating workplaces where employees can perform at their best. Ultimately, the strongest message an employer can send is not just a rainbow flag in June, but a consistent commitment to treating all people fairly throughout the year.
If you would like to discuss how your organisation can strengthen its approach to LGBTQ+ inclusion and ensure compliance with employment law, reach out to our employment team for expert guidance and tailored support.
