National Coming Out Day: Employers still have much to do for diversity

To be your best, it is vital that you are comfortable with being your true self at work. If you are holding back something like your sexual orientation or gender identity at work, this will undoubtedly affect your performance, productivity and mental health.

Today (Friday 11 October 2019), diversity is being celebrated with National Coming Out Day.

But if there was any doubt that it is still not easy to come out at work, a report by the TUC this year found two-thirds of LGBT people said they would not tell their employer about experiencing harassment, mainly for fear of being ‘outed’ at work.

The report makes for some shocking reading, including that almost 70% of LGBT people who responded to the survey have been sexually harassed in the workplace. Stonewall’s 2018 LGBT in Scotland: Work Report found that more than a third of LGBT employees hid or disguised that they are LGBT because they were afraid of discrimination, rising to more than half of trans staff. The very fact that you have to come out in the first place is a barrier itself, a barrier that simply does not exist for straight, cisgender people.

The Equality Act 2010 (the Act) prohibits discrimination and harassment because of or related to the nine protected characteristics, including sexual orientation and gender reassignment. It is unlawful to subject someone to a detriment because they have brought proceedings under the Act, raised a grievance or otherwise alleged discrimination or harassment, or helped someone else to make a claim by giving evidence or information. This is known as victimisation. Despite victimisation being unlawful for a number of years now, the TUC report confirms that the LGBT workforce is still reluctant to disclose discrimination and harassment, for fear of being outed.

There are reputational and financial consequences for employers who fail to comply with the Act. Fees for claimants to raise a claim in the Employment Tribunal have now been abolished and the number of claims being brought has risen exponentially since. Employment Tribunal judgments are now available for anyone to view online, and compensation for discrimination and harassment is uncapped. There is no minimum length of service required to bring a claim and, in fact, job applicants and ex-staff can also bring claims under the Act.

It is important for employers to ensure they stay on the right side of the law and avoid discrimination and harassment in the workplace. Employers should ensure staff are well trained, that they have up-to-date and fit-for-purpose policies (including an Equality and Diversity policy) and that allegations of discrimination and harassment are taken seriously, investigated and dealt with thoroughly and timeously.

Allegations of LGBTQ+ discrimination and harassment must also be handled sensitively and employers should be mindful of a person’s wishes in relation to the disclosure of their sexuality or gender identity. Outing an employee can be discrimination and harassment in itself and may also breach the implied duty of trust and confidence in the employment relationship.

Employers should also strive to do more than simply ensure legal compliance. Discrimination and harassment is bad for morale and it is just bad for business. Diversity and inclusion on the other hand is good for morale and business. The more diverse and inclusive your workplace is, the more comfortable LGBTQ+ staff will be to ‘come out’ at work.

Sharing best practice with other employers is a good place to start. At MacRoberts we offer staff rainbow lanyards and the opportunity to include their pronouns in email footers. We recently organised a bake sale across all three offices for Pride, donating over £1,600 to the Time for Inclusive Education campaign. We are Stonewall Diversity Champions and an Ally Firm of the Glass Network Charter. Next month we will welcome Stonewall to each of our offices to deliver LGBTQ+ at Work lunch and learns. We have also reviewed our internal policies to ensure they are gender neutral and LGBTQ+ inclusive.

It is important that staff are able to identify other LGBTQ+ colleagues and that there are senior champions and allies in the workplace. This creates a safe environment for LGBTQ+ staff to come out at work and be their true selves. Of course, there is only so much that an employer can do. An individual’s decision to come out, at work or otherwise, is a very personal decision and is much more difficult than you might realise. Nevertheless, the more you do to create a diverse and inclusive workplace for LGBTQ+ staff, the more likely they will be to come out at work and bring their best self to work. This can only benefit your business and the workplace.

The TUC’s report provides recommendations (to government, regulatory bodies, employers and trade unions); including recommending employers adopt a zero-tolerance approach to all forms of discrimination and harassment, and is well worth a read.

Until your LGBTQ+ staff have come out at work, they are not being themselves at work. It is important to engender a culture in which all staff feel able to come out at work. That is sometimes easier said than done, and it’s a journey rather than a tick box. If you have started that journey, keep going. If you haven’t, why not?

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