Ask the Lawyer: How To Battle 3 Types Of Discrimination At Work

PinkNews brings you the latest in a series of features which sees your real questions answered by leading lawyers at Simpson Millar.

A Simpson Millar solicitor takes you through three examples of discrimination in the workplace and how to fight it if you have experienced them.

Although the Equality Act 2010 protects you against many types of discrimination, including on the grounds of your sexual orientation, this doesn’t stop discrimination from happening – especially in the workplace.

Simpson Millar’s Employment Law expert explains how you can tackle 3 examples of discriminatory treatment in the workplace.

Tackling Bullying And Offensive Comments At Work

When it comes to encouraging diversity, some employers aren’t doing enough.

Homophobic bullying in the workplace is rife, with 1 in 10 LGBT employees revealing that they have been bullied simply because of their sexuality in a recent survey.

Overcoming Bullying

As an example, imagine that one of your colleagues ridicules you everyday because of your sexuality and uses offensive terms when speaking to you.

Although you’ve ignored their comments, they’re now getting on top of you. You’re also anxious about working the same shifts as your colleague and what’s worse is that you feel embarrassed about talking about your partner at work.

Frustrated and upset, you’re not sure what to do.

The reality is that this type of treatment could actually amount to harassment on the grounds of sexual orientation. This is where someone engages in unwanted conduct relating to sexual orientation, which has the purpose or effect of violating your dignity or creating a hostile, degrading or humiliating environment for you.

Being treated like this is unfair and unlawful. Often, people will continue to make comments like this unless they’re challenged by a senior member of staff and it’s made clear that their actions won’t be tolerated.

Taking Action

Speaking up can be difficult, but it’s important for your health, safety and wellbeing, and that of others who may be subject to such negativity, that you report this.

It’s helpful for you to keep a log of any offensive or derogatory comments made about you along with any dates and the names of any witnesses who heard them. This will help you to recall the instances of harassment when reporting it.

Some employers have anti-harassment or equal opportunities policies, which set out how to deal with these instances at work. It’s a good idea to have a look through these as well as speaking to your line manager or HR department.

There’s a good chance that the matter can be resolved at this stage, but if you’re not satisfied you could raise a formal grievance, setting out your concerns and how your colleague has made you feel in writing.

If your company doesn’t have a grievance policy you shouldn’t let this stop you from making a complaint – the important points are that you:

• Make it clear who and what the grievance relates to
• Provide as much information as possible (your log would be great to use here)
• If your employer fails to deal with your grievance, it’s helpful to get advice from an employment expert on issuing a claim to the employment tribunal.

Dealing With Unfair Treatment Over Parental Leave

Whilst all employees generally have to meet certain requirements to qualify for the different types of parental leave, none of these requirements relate to sexual orientation.

If you and your partner are adopting a child, for example, you can apply for adoption leave. As long as you meet the requirements, either you or your partner could take up to 52 weeks of adoption leave and the other parent could then take paternity leave, or a mixture of this with shared parental leave.

Shared parental leave is a useful way of splitting your partner’s leave with you. For example, if they return to work early and still have some of their adoption leave you’re entitled to take their leave or share it with them.

Looking at another example of discrimination, imagine that you’re adopting a child and have asked your employer for 2 weeks of paternity leave. You’ve also asked if you can take shared parental leave as your partner wants to take only 30 weeks of adoption leave before returning to work.

Your manager is being difficult about letting you have this time off even though they have allowed one of your heterosexual colleagues in the same role to have shared parental leave before.

What Are Your Rights?

Same-sex couples have every right to take the same types of parental leave as heterosexual parents.

As your partner is entitled to 52 weeks of adoption leave but is only taking 30 weeks, you can share the remaining 22 weeks of leave they have left. You’re also entitled to 9 weeks of statutory adoption pay (or more depending on what your company offers). This is because the law grants 39 weeks of adoption pay to parents, and your partner is set to receive 30 weeks’ pay.

If you think that your manager isn’t aware of your rights, you could have an informal chat with them about this. But, if this doesn’t make a difference and you believe you’re being discriminated against you could raise a grievance in relation to discrimination on the grounds of your sexual orientation.

The reason for your grievance would be that you believe that your manager has treated you less favourably on the basis that you are in a same-sex relationship. Getting legal advice could make a big difference to how your employer responds to the situation, especially if you decide to take the next step and make an employment tribunal claim.

Losing Out On A Promotion Because Of Your Sexuality

Your sexuality has no bearing on your ability to do your job, but this doesn’t always stop prejudice from taking over in the workplace.

Imagine that you’re ready to take the next step in your career and have applied for a promotion at work. But, you’ve found out that you weren’t considered for the role by your manager because you’re gay, and that your heterosexual colleague got the job.

You want to take action but don’t know what to do – what are your options?

Employers cannot make a decision on whether someone can do a job based on their sexuality. In this case, your manager’s behaviour amounts to direct sexual orientation discrimination, which means that you’ve been treated less favourably than your colleague simply because you’re gay.

Handling Direct Discrimination

The first step you should take it to ask for written confirmation about why you weren’t selected for the position.

If your manager refuses to provide this information or you are not satisfied that they had provided an honest response, you should raise a grievance.

Your employer should have a policy offering information on how to submit a grievance, but if they don’t you can write a letter or email to your employer that outlines your concerns. This should mention that you believe you weren’t chosen for the job because of your sexuality and that you’d like the matter to be investigated in confidence.

As this grievance is against your manager, you should address the letter or email to HR or a more senior manager in the absence of a clear policy telling you what to do in this situation.
Some types of discrimination can be justified, but this type cannot.

Your employer may try to rely on an exception such as saying that your colleague (who was accepted for the role) is better suited to the job due to their technical ability or qualifications.

If you have evidence of your manager rejecting you for the role due to your sexuality, you should obtain copies or records of this. If you don’t get a satisfactory outcome from your grievance, our employment experts can help you make a claim to an employment tribunal.

Simpson Millar Can Help You

Being treated differently because of your sexuality is unacceptable, especially when employers should be making workplaces more inclusive.

If you have experienced discrimination or are currently being targeted by a colleague, manager or your employer, get in touch with our Employment Law experts.

With years of experience fighting for employees’ rights, we can help you find the best outcome for your situation.

Whenever you’re ready to speak to us, you can call 0800 260 5005 or click here to request a call-back.

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