Straight up! Why the law should protect lesbian and gay workers

Issue date

19 Apr 2000

00.01hrs

Wednesday 19 April

Section One
Section Two Discrimination
Section Three Public Opinion
Section Four Legislation Is Needed
Section Five Conclusion

Section One

Almost every day in Britain lesbians and gay men are discriminated against because of their sexuality. Yet despite shocking levels of harassment and homophobia, the victims have no protection under UK law. As part of its campaign to secure new anti-discrimination legislation, the TUC has uncovered many examples of appalling treatment of a character that, had the cause been gender, race or disability, those at the receiving end would have been able to look to the law for redress.

A recent opinion poll commissioned by the TUC finds that there is a large majority of people who believe it is wrong for lesbians and gay men to be treated worse than their heterosexual colleagues. The same survey identified high levels of public support for extending pension and other job-related benefits to the long-term partners of lesbians and gay men in the same way that heterosexual partners currently benefit.

Previous experience of dealing with unfair discrimination has shown that there is no substitute for legislation. Changing the law will not end prejudice, but it would clearly show what is, and what is not, acceptable. It would also offer a way for people suffering discriminatory treatment to obtain redress.

The TUC has joined forces with Stonewall, a number of lesbian and gay community organisations, and Liberty, to campaign for the government to introduce legislation to outlaw discrimination against lesbians and gay men. The government response, so far, has been to promise a voluntary Code of Practice. While welcoming every step taken to tackle this area of discrimination, the TUC campaign is based on the understanding that only legislation will provide the firm basis for challenging the discrimination faced by lesbians and gay men, at work and in society at large.

Section Two Discrimination

Discrimination against lesbians and gay men for no other reason than because of their sexuality is commonplace. The form it takes varies. Sometimes it is the result of ignorance or too little thought, sometimes the result of conscious prejudice. Common examples are:

abuse and harassment at work, often leading to people being forced out of their employment or suffering breakdowns;

dismissal;

failure to promote;

denial of access to benefits received by heterosexual workers and their partners or spouses, such as travel concessions, insurance schemes, special leave.

Discriminatory treatment takes place in all areas of life. One of the most serious examples is the denial of survivor benefits to homosexual partners in the majority of pension schemes. But it can take place anywhere, at any time, and the law provides little protection. There is protection against criminal harassment in the Public Order Act, which is little-used, and a judgement in the Court of Appeal [1] allowed a gay man to claim sex discrimination if he could show a lesbian would be treated more favourably. That is all.

The TUC believes, along with the lesbian, gay and bisexual community, that this is wrong and that the same kind of protection currently provided against discrimination on the grounds of gender, race and disability must be extended to cover sexual orientation.

This report highlights the prevalence of discrimination, provides a number of illustrations, and shows that providing protection is actually supported by a majority of the population.

Previous surveys

There have been three surveys over the last decade illustrating the scale of the problem.

Surveys carried out by Stonewall (1993) and Social & Community Planning Research (SCPR) (1995) provided evidence that a large proportion of the lesbians and gay men surveyed had suffered harassment and discrimination in their lives. The SCPR survey also found that up to a third of the heterosexuals questioned admitted that they would discriminate against a lesbian or gay man.

These findings were confirmed by a survey conducted by the TUC in 1999. Out of some 450 lesbian, gay or bisexual trade unionists asked about their experiences at work, no less than 44% reported that they had suffered discrimination because of their sexuality. In the worst cases this involved dismissal, but a very large number reported instances of name-calling and homophobic abuse. Most of the survey respondents were active trade unionists, suggesting that their experience is not necessarily typical. But the very fact that so many people who are more aware than most of their rights should report such a high level of discriminatory treatment makes for alarming reading. Some reported that they were able to deal with the problem themselves, or with the help of their union and most (but not all) were able to be open about their sexuality. But many gay workers are still putting up with bad treatment, and there is nothing to compel their employers to act to stop it.

The accounts in the survey came from every walk of life, every type of workplace, covering every part of the country and every age group. Shop floor workers, teachers and lecturers, doctors, fire fighters, local government workers, civil servants - no one is safe from homophobia. The people in the TUC survey were fortunate in that they had access to a trade union for support. Others, who are isolated, perhaps terrified of being 'outed', may have nowhere to turn.

Each story is different, and the following have been selected from those that have come to the attention of unions to illustrate the full scale of the problem.

Discrimination case studies

Bill was sacked from his job in Aberdeen when he was charged with gross indecency - a charge he denied. He pled not guilty and eventually all charges were dropped. He assumed the slate had been wiped clean and applied again for work with his former employer. His applications were repeatedly rejected. In the end, he had to move 400 miles and take a drop in pay of £3000 a year to get another job.

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Paul worked as a domestic in a hospital in the North West. He applied and was accepted for a job in the catering department. Looking forward to this new start, Paul passed his medical and handed in his notice for his old job. But three days before he was due to start, he was told the job was no longer available because of a lack of resources.

He discovered later that the true reason was blatant homophobia - that the kitchen staff had made it clear that they did not want ‘another queer’ working with them. Indeed the gay man who already worked in the kitchen eventually resigned because of intolerable homophobia. Paul now works as a nursing assistant.

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Tim worked for a large printing organisation in Manchester where the work culture was very traditional - an all male, very macho environment. As soon as his colleagues discovered Tim was gay, the harassment began. This ranged from serious verbal intimidation through to leaving a noose, and a ransom note cut out of newspaper on his desk. On one particular day Tim was so distressed after a colleague had accused him of having AIDS, that he went home, for which he was subsequently disciplined.

Unfortunately some of his colleagues found out where Tim lived, and damage was done to his parent’s house. Unable to take any more, Tim took six months off work because of stress, having already attempted suicide. In a desperate state, Tim sought the support of his union, the GPMU, but the problem had got so bad that he no longer felt able to continue in the job. Tim subsequently left his place of work after the union was successful in negotiating a compensation package with the employer.

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James McKeating, a firefighter in West Yorkshire, was asked by a colleague if he was gay. He said yes. Colleagues then refused to get on the same fire engine as him. He started getting anonymous and abusive phone calls at home with many references to him having AIDS, leading to severe stress for which medication was needed. James was forced to change stations, but rumours were spread from the first station and the abusive remarks continued. An officer told him "I don't want your type in my profession" and his watch commander told him he didn't want him on his shift. The watch commander subsequently refused to talk to him. James is now at another station.

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Doreen worked as a porter in a large NHS hospital in Yorkshire. Co-workers subjected her to sustained homophobic and racist harassment. Malicious allegations were made about her to the management and although these allergations were never substantiated, her contract was terminated.

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Aruna was a voluntary sector worker in Greater London with responsibility for working with young girls. Rumours about her lesbianism developed into accusations that her sexuality put the young girls she worked with in danger. She raised this with her management committee, who completely failed to respond. Aruna eventually felt she had no option but to resign and look for work elsewhere.

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Shanaz a social worker in Hertfordshire - received homophobic death threats from a client. She was forced to leave her home and spent several months in hiding. Her employer, the local authority, was slow to respond and ineffective when it did. Shanaz has now been able to return to work but there are still no procedures in place to protect workers from such threats and ensure their safety.

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Lyn is a residential social worker. She has worked in the same centre for young people in care in Buckinghamshire for over ten years, where she is out as a lesbian to her colleagues, and has been promoted twice during that time. Shortly after a change in management, a young person was placed in the centre who knew Lyn’s family and private life. Lyn was concerned about this and immediately raised it with her manager, who did not accept that this presented any problem. Unfortunately, Lyn’s concerns proved correct and soon she was being subjected to verbal and physical abuse by some of the young residents which lasted over many months.

Although Lyn repeatedly raised this with her line manager, none of the issues were resolved. One of the young people then made a malicious false allegation about Lyn. Management’s investigation of this stretched over five months, for a significant period of which Lyn was suspended. On completion of the investigation, Lyn was invited to return to work but as all the original issues remained unresolved, she sought redeployment. Lyn has applied unsuccessfully for three other jobs. She has now received a letter telling her that is if she is not redeployed within six weeks, her contract will be terminated.

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Ron Strank and his partner Roger Fisher have been together for 40 years. Both now in their sixties, the Croydon-based couple are angry that when one of them dies, the surviving partner will be denied access to the other’s pension entitlement. Having paid in to the NHS pension scheme all their working lives, Ron points out that were he in a heterosexual relatioinship, and his partner died, he would be able to continue receiving money from the pension fund. Yet because his partner is a man, the rules of the pension fund do not allow a similar transfer of entitlement.

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Mark Swann worked as an inspector for Thameslink Trains, but as soon of one of his managers found out that he was gay, the harassment and the remarks began. Unable to cope with what was at times, an extremely unpleasant working atmosphere, Mark took a number of days off sick. Nearing the end of his probationary period, Mark’s manager called him in to tell him that because of his poor sickness record and his failure to collect sufficient penalty fares, the company was left with no choice but to sack him. Although Mark subsequently successfully took his employers to tribunal for breach of contract - his contract included an equal opportunities clause forbidding ill-treatment because of a person’s sexuality - he is now working in a bar, earning less than half what he was earning before. Moreover because of references supplied by Thameslink, Mark is having problems finding another permanent job.

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Shirley Pearce had worked for the same school in Hampshire as a maths teacher, but the last few years had been marred by constant harassment from a group of pupils. One day the contents of a tin of cat food were emptied into her pocket, at other times she was confronted by intimidating groups of pupils outside the school. Despite constant complaints to the head, Shirley fought an uphill battle to get her employers to take the problem seriously. She was offered no support and the constant strain culminated in her having to take time off for stress. Put under pressure by the school to stop taking time off, Shirley felt no other alternative was open to her other than to take early retirement and so reluctantly ended a 27-year teaching career. Last March Shirley took her employer to a tribunal, which didn’t dispute the facts of the case, but found that existing sex discrimination legislation does not protect against this kind of harassment. Shirley’s case recently went to the Employment Appeals Tribunal, which confirmed the original tribunal’s decision.

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Dr Nick Priestley was a neuropsychologist working in the Manchester area. Having spoken in support of gay colleagues who had experienced harassment at work, Nick, who is also gay, was subjected to a campaign covertly supported by management to marginalise him and undermine his professional standing. Despite his constant complaints, no action was taken, giving Nick option but to resign. Nick went to an employment tribunal, the chair allowed Nick's ex-employers' representatives to ask questions of an extremely homophobic nature, invoking references to God and his upbringing. Appalled that the chair was showing no signs of challenging this behaviour, Nick's Counsel formally applied for the chair to stand down on the grounds of bias. This he refused to do. Nick felt he had no option but to withdraw from the tribunal. Nick’s case has been strongly supported by several MPs. David Chaytor MP has raised the case in the House of Commons and Liberty have made a formal complaint about the Tribunal’s conduct to the Lord Chancellor.

Section Three Public Opinion

In order to test public opinion on whether employers should be allowed to discriminate against people because of their sexuality, the TUC commissioned an opinion poll which was conducted from 16 to 22 March 2000 by BMRB International.

A weighted sample of 964 persons aged 15+ was asked whether they agreed or disagreed with three statements:

Employers should not be allowed to sack a member of staff simply because they discover they are lesbian or gay.

Employers should not be allowed to treat a member of staff less favourably because they are lesbian or gay.

Employers should treat the long-term partner of gay or lesbian staff in the same way as the partners and spouses of other staff members when it comes to benefits like staff discounts or pensions.

The overall responses were as in the following table:

Poll Responses

Response	Statement 1	Statement 2	Statement 3
Agree	67%	68%	58%
Tend to agree	7%	9%	13%
Neither agree nor disagree	10%	10%	15%
Tend to disagree	4%	3%	5%
Disagree	10%	7%	7%

In general, therefore, approximately 74% of respondents agreed that employers should not be allowed to treat lesbians or gay men less favourably, and between 10 and 14% thought that they should. Among people of working age, support for equal treatment was greater, as it was among people aged 15-34. More importantly, there was a majority in all age groups, and in all regions of the country, in support of all three statements. More women than men supported the three statements in all age groups and regions.

Section Four Legislation Is Needed

The TUC and the lesbian, gay and bisexual community believe that legislation is required to extend the protection already available to people who suffer discrimination on the grounds of gender, race and disability to cover sexual orientation. A number of measures are currently under consideration both in Europe and in the UK, and the TUC welcomes every step that recognises the reality of discrimination and seeks to do something about the problem.

Article 13, Amsterdam Treaty

The European Commission has introduced a proposed Directive to outlaw discrimination in employment on a large number of grounds, including sexual orientation, using the powers established by the Amsterdam Treaty. This draft Directive is the first explicit EC legislation to recognise sexual orientation as an issue for European Community action. It will require unanimous support among the 15 member state governments.

Even if the draft directive becomes law, it will not be a substitute for domestic legislation. The text is necessarily drafted in the broadest terms, because it encompasses so many different areas, and it can, therefore, establish only minimum standards. Any moves to outlaw discrimination are to be welcomed, but the draft directive’s proposals must be seen as the first foundations for effective legislation in member states rather than an end in themselves. Another problem is that the measure applies only to employment, and while this is a very important area, discrimination on grounds of sexual orientation takes place in every area of life. In Britain, the other anti-discrimination laws cover all areas (such as the provision of goods and services), and it is necessary for lesbians, gays and bisexuals to have this legal protection too.

Code of Practice

During 1999, and following consistent campaigning by the TUC and lesbian and gay community, and pressure from the Equal Opportunities Commission, the government acknowledged that discrimination on grounds of sexual orientation is a problem in Britain’s workplaces. The government has decided against legislation at this stage and instead has asked the EOC to draw up a Code of Practice on sexual orientation discrimination.

The first government action on discrimination on grounds of sexual orientation is an important step. We would wish to see the promised Code be as effective, and as widely promoted, as possible.

But the Code is to be voluntary. The danger is that only those employers who already recognise the issues will pay heed to it, while the many other employers who, either through ignorance or through their own prejudice do not want to act, will be able to ignore it completely. The experience to date of other Codes of Practice is that unless they are backed up by the law, they are ineffective. It is likely that a similar fate awaits this Code.

The Burden On Business Argument

The government has argued that it does not want to add further regulatory burdens on business by introducing new employment laws. Our view is that discrimination in the workplace (as elsewhere) is fundamentally unacceptable and demands to be addressed as an issue of civil and human rights. However, to require employers to ensure that they do not discriminate unfairly need not be a burden at all. Teamwork and cooperation among workers or between workers and managers is undermined and efficiency is damaged if discrimination and harassment are allowed. People suffering the stress that results from homophobic abuse and harassment are not likely to work at their best, and will probably take their talents elsewhere at the first opportunity. Toleration of discrimination cannot be good for business.

Human Rights Act

The Human Rights Act comes into force in October 2000 and the possibilities of its being used to assert the rights of lesbians and gay men against discrimination are being discussed. Until such time as it is tested in court, it is not clear how useful it will be. It is certain that such efforts will be made, and that case law may be made in a piecemeal and individual fashion. The Act applies only to public bodies. The outcome of cases under this Act cannot be predicted.

New Legislation Needed

It would be simpler and better for there to be specific legal protection against discrimination on grounds of sexual orientation, founded in the principles adopted by the TUC and its partner organizations campaigning for such legislation (see Appendix). The model proposed by the TUC, Stonewall, Labour Campaign for Lesbian and Gay Rights, LAGER (Lesbian and Gay Employment Rights), Liberty, the National Union of Students and other organizations, and supported by many MPs, is consistent with the principles of equality legislation advanced by the Equal Opportunities Commission and Commission for Racial Equality and embodied in the Disability Discrimination Act.

The TUC opinion poll demonstrates that there is majority support for treating people at the workplace without discrimination and for extending to the partners of lesbians and gay men the same rights as are enjoyed by partners of heterosexuals.

The campaign to win legal protection calls upon the government to make a commitment to introduce legislation along these lines at the earliest opportunity, to build upon the minimum standards that will be laid down by the proposed European Employment Directive and to extend to lesbians, gay men and bisexuals the same basic protection against discrimination as is rightly enjoyed by other groups of people who face prejudice.

Section Five Conclusion

The evidence presented in this report is clear. Discrimination against lesbians and gay men because of their sexuality is widespread, often vicious, and the situation is intolerable. The TUC poll has found that the majority of people in Britain support equal treatment for lesbians and gays at work. The response of the government in promoting a voluntary code of practice is insufficient to tackle the problem. The extension of anti-discrimination legislation to include grounds of sexual orientation is essential if the abuse and unequal treatment is to be challenged effectively. The TUC calls on the government to commit itself to introduce such legislation at the earliest opportunity.

Appendix One

Statement of principles

The following statement was adopted at a conference hosted by the TUC on 21 May 1999 as the basis for legislation to outlaw discrimination against lesbians and gay men.

The objective is legislation to establish the principle of equal treatment for lesbians, gays and bisexuals. This will be provided by:

Outlawing discrimination (direct or indirect) on the grounds of actual or supposed sexuality, lifestyle and/or relationships in employment (paid or unpaid), training and education. Similarly in the provision of goods, facilities and services, the disposal or management or premises and in all dealings between the citizen, the state and public authorities;

Prohibiting harassment in employment, training and education, and the provision of goods, facilities and services, on the grounds of sexuality, lifestyle and/or relationships;

Providing effective protection against victimisation of anyone claiming their rights under this law;

Ensuring that the 'burden of proof' in cases should meet the requirements of the EC Council Directive on Burden of Proof;

Providing an effective means for individuals to secure their rights under this law (that is, through a body with powers equivalent to those of other discrimination Commissions);

Enabling complaints under this law to be brought before an Employment Tribunal, with the same time limits and procedures as apply to other discrimination cases and with the same range of remedies.

Congress House

Great Russell Street

London WC1B 3LS

telephone 020 7636 4030

fax 020 7636 0632

www.tuc.org.uk

contact:

Peter Purton

020 7467 1271

ppurton@tuc.org.uk

[1] Smith v Gardner Merchant, 1998. The conclusion from this case would be that if both were treated equally badly, there would be no case.

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