Comment: What to do if you face homophobic discrimination at work

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Commenting on last week’s UK Supreme Court ruling involving the Christian B&B owners who were prosecuted for discriminating against a same-sex couple, Employment Lawyer Jamie Feldman writes for PinkNews on what to do if you encounter homophobic discrimination in the workplace.

The Supreme Court handed down its judgement last week by a 3:2 majority that a gay civil partnered couple had been directly discriminated against by Christian owners of a bed and breakfast hotel for the refusal to allow them to share a double bed.

Despite having been offered compensation by the bed and breakfast owners on the day of the refusal, Mr Hall and Mr Preddy decided to take their case to the Bristol County Court and following two appeals, the case appeared before the United Kingdom’s highest court.

These types of discrimination claims are governed in Great Britain by the Equality Act 2010, which applies to discrimination arising in the workplace (which is the focus of this article) and also in wider society (such as the Bull & Bull v Hall & Preddy decision).

At work, the Act aims to ensure equality of opportunity, to protect workers’ dignity and to ensure that complaints can be raised without fear of reprisal. However, in practice, it can often be intimidating and stressful for workers to raise complaints of discrimination, particularly if your “protected characteristic” is not common knowledge amongst your colleagues.

The Act sets out the following as types of “protected characteristics”: sex, gender reassignment, marriage or civil partnership status, pregnancy or maternity, race, disability, sexual orientation, religion or belief or age.

The question therefore arises, at what point do you turn to the courts if you feel that you have been discriminated against at work?

Employers must comply with the Equality Act, which means that an employer must not discriminate against you on the basis of your protected characteristic.

Discrimination can be either “direct” or “indirect” – to put this simply, if an employer treats you less favourably than a comparator because of one of those protected characteristics, this is direct discrimination; if an employer applies a provision, criterion or practice that would put you and a group of people sharing your protected characteristic at a disadvantage, this is indirect discrimination.

Employers are also “vicariously liable” for the acts of their employees, meaning that your employer is responsible for the discriminatory actions (or omissions) of its employees.

You are also protected from suffering from any form of harassment, which involves unwanted conduct that has the purpose or effect of violating your dignity, or creating an offensive, intimidating or hostile environment. In addition, you must not be victimised as a result of making a complaint of an act of discrimination or harassment.

Any one act of discrimination, harassment or victimisation, no matter how small, may amount to a breach of the Equality Act 2010. However, there are certain limited exceptions and defences available to employers.

From a practical point of view, write down what happened as soon as you can after it happened, or tell someone else so they can write it down. Make sure you remember and accurately record as much information as possible.

Following this, depending on the seriousness of the issue, an informal complaint to your employer is usually the best course of action. Let them know about the treatment you have been suffering from and that you don’t think it is appropriate.

Your human resources Department or your line manager will generally be the best person to talk to. If you are concerned about any negative impact this may have on you, tell them in confidence. Ask that the treatment must stop and that an appropriate solution be reached.

If no suitable solution has been reached or if the matter is more serious, seek out whether your company has a formal grievance procedure and ensure that you follow that procedure. This will often involve raising your complaint in writing and requesting an investigation take place into the matters you are concerned about.

If you still remain unsatisfied with your employer’s actions you might be able to take a claim to an employment tribunal for discrimination. However, there is no guaranteed outcome of litigation, and it can often be a difficult process, not to mention costly.

If you think that you may be suffering from any form of discrimination, harassment or victimisation, then an Employment Lawyer may be able to advise you. You could also consider speaking to ACAS (the Advisory, Conciliation and Arbitration Service), Citizens Advice or a trade union representative.

Jamie Feldman is an Employment Lawyer at law firm Harbottle & Lewis.