In February, the lesbian, gay, bisexual, transgender and non-binary (LGBT+) community, as well as all of its allies, will celebrate LGBT+ History Month, a month-long annual celebration to promote and increase LGBT+ awareness. Not only does this provide an opportunity for people to learn about the history of LGBT+ rights, but it also presents an opportunity for businesses and employers alike to reflect on their own practices, what they are doing to support the LGBT+ community and what they could do better.

LGBT+ in the workplace

Sue Sanders, the co-founder of LGBT+ History Month, has stated that "we have a lot of work to do". This is certainly reflected in the findings of Stonewall's "LGBT in Britain – Work Report", which surveyed 3,213 employed LGBT people (across England, Scotland and Wales) about their experiences of discrimination in the workplace. The survey found that 18% of LGBT employees have received negative comments or conduct from colleagues, 18% have been discriminated against whilst looking for work and 12% of trans employees have been physically attacked by customers and colleagues. For black, Asian and minority ethnic LGBT employees, the position is even worse with 12% reporting that they lost their job in the last year due to being LGBT compared to 4% of white LGBT employees. 

With statistics such as these, it is unsurprising that many LGBT+ employees do not feel comfortable disclosing their identity at work. Stonewall's survey found that 38% of bi employees hide their sexuality from colleagues, 35% of LGBT employees hide their identity at work and 31% of non-binary people do not feel comfortable wearing clothes that reflect their gender expression. 

It is clear that, despite some employers' efforts to tackle discrimination in the workplace, many still have a long way to go in making their workplaces an inclusive environment for the LGBT+ community. 

The Equality Act

The statistics are profound and it will likely be a part of every business's and employer's goals to tackle them regardless of the legal repercussions of not doing so. However, aside from moral issues, there is also a legal duty on employers to prevent discrimination in the workplace. Under the Equality Act 2010, employers must not directly or indirectly discriminate, harass or victimise employees on the basis of their sexual orientation or gender reassignment. Individuals are protected under the Equality Act in relation to the application and interview process as well as throughout the course of their employment. Furthermore, an employer can be held liable for anything done by an employee in the course of their employment, regardless of whether this was done with the employer's knowledge or approval. Therefore, employers can also be held liable if one of their employees discriminates, harasses or victimises an LGBT+ colleague on the basis of their sexual orientation or gender reassignment. 

The compensation available to employees for discrimination claims is uncapped and will be decided based on the facts of the particular case. An employer can, however, avoid liability by demonstrating that it took all reasonable steps to prevent its employees committing the particular discriminatory act in question. 

One step at a time

Given the potential for vicarious liability under the Equality Act and the "all reasonable steps" defence mentioned above, it is fundamental that employers have rigorous procedures in place to prevent workplace discrimination, harassment and victimisation. However, the statistics show that whilst most companies may have procedures in place, in at least some cases these are proving to be ineffective. 

Aside from an employer's legal duty, many employers will consider that they have a moral duty to protect and support their LGBT+ employees and there are many steps an employer can take to do so. Firstly, employers should develop clear zero tolerance policies towards homophobic, biphobic and transphobic behaviour. These policies should be actively communicated to all employees and employers should provide support and training on diversity and inclusion. In order to improve trans inclusion, employers should encourage all staff to use pronouns, run awareness sessions and develop policies that support trans employees who are either transitioning or are fully transitioned. 

It is important that employers are supportive from beginning to end. They should start at the recruitment stage by clearly communicating their commitment to diversity and inclusion in job advertisements and on their website. This in itself will assist in making their workplace a more inclusive environment as it will attract a more diverse workforce. However, if and when an employer's attempts to prevent discrimination, harassment or victimisation fail, they should also provide support to their LGBT+ employees at the reporting stage. Stonewall's findings show 12% of lesbian, gay and bi employees do not feel confident reporting homophobic or biphobic bullying to their employer, whilst 21% of transgender employees felt the same about transphobic bullying. Employers should have a clear policy on reporting homophobic, biphobic and transphobic bullying and should ensure that this route is readily available to all staff. 

It is clear that employer action is required to improve LGBT+ inclusion in the workplace. However, the UK government is also taking action. In November 2021, the government's LGBT Business Champion, Iain Anderson, hosted business and charities in Manchester to discuss LGBT inclusion in the workplace. The evidence gathered by the LGBT Business Champion helps open discussions between organisations about what more can be done to ensure the workplace is inclusive for LGBT employees and shapes future recommendations to businesses. With the government and employers working together, there is hope that LGBT+ inclusion in the workplace will continually improve.