NEWS - DISCRIMINATION - 21.04.2005

Homophobia will cost you

Protecting gay employees

Since December 2003, protection against workplace discrimination has been extended to gay, lesbian and bi-sexual workers. This is by virtue of the Employment Equality (Sexual Orientation) Regulations 2003. These make discrimination, victimisation and harassment on the grounds of sexual orientation illegal. The first case has just been decided by a tribunal. What are the key points to come from it?

Teased for being gay

Rob Whitfield (W) was employed as a manager by Cleanaway UK, an international waste management company. Even though he’d kept his sexual orientation to himself, he was widely taunted about being gay. In fact, his colleagues nicknamed him “Sebastian” after the gay character portrayed in the TV series Little Britain. Also, at a conference of 60 colleagues, directors presented him with a pink-lettered T-shirt and teased him for his taste in “poofy” drinks. Other, more junior staff referred to W as a queen. After five months of this, W left and claimed constructive dismissal.

No laughing matter

Unsurprisingly, the tribunal found in W’s favour partly because of the number of incidents that he’d been subjected to. These constituted both discrimination and harassment. Discrimination was easily proved because W was treated less favourably because of his perceived sexual orientation, e.g. singled out in front of his colleagues at the conference. In terms of harassment, the test under the Regulations is unwanted conduct which violates a person’s dignity and/or the creation of a degrading or hostile environment. Again, this was easily proved due to the continual taunts that W was subjected to. As a result, he was awarded nearly £35,000 in compensation.

Aggravating circumstances

This case contained several aggravating features which may have served to increase the compensation paid to W. These were as follows; (1) It was directors and senior managers that were responsible for much of the behaviour complained of, rather than junior staff; (2) Complaints made by another gay employee previously, had been ignored, and; (3) The HR department had failed to ensure that senior managers understood the change in the law regarding references to sexual orientation.

Don’t be caught out

The employer was also hit hard because it failed to accept that this type of behaviour was even a problem; normally employers are penalised for not having done enough when a problem has been brought to their attention. You can reduce the risks of a similar claim striking you by taking some simple steps.

Tip. Ensure that your policy on harassment specifically includes sexual orientation. It should make it clear that name-calling, derogatory jokes/pranks etc. could warrant disciplinary action. This policy should be enforced equally amongst managers and staff. Visitors should be made aware of it if it looks like being necessary by their comments.

If you would like a copy of our sample policy on sexual orientation, visit http://personnel.indicator.co.uk (PS 07.08.02).