Recent studies suggest that LGBTQ+ workers are more likely to have experienced workplace conflict, and to consider that their workplace damages their mental wellbeing. A survey by the Trades Union Congress in 2022 found that only half of HR managers reported that they had a policy prohibiting discrimination, bullying and harassment against LGBTQ+ workers in their workplace. Less than half said they have a clear reporting route for LGBTQ+ workers to raise concerns about these issues.

What types of claims might arise?

While claims for discriminatory bullying and other unfavourable treatment can potentially be brought as claims of direct discrimination, claims for unlawful harassment are also common.

The Equality Act 2010 protects employees, as well as workers, against discrimination and harassment. Both are two separate concepts and claims in law. Direct discrimination claims can arise where an employee has been subject to less favourable treatment because of a protected characteristic (these include, but are not limited to, sexual orientation and gender reassignment, therefore offering protection to gay, bisexual, transgender, and non-binary employees/workers).

Harassment claims may be raised if an employee has been subjected to unwanted conduct related to a protected characteristic, which either violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment. A claim can be raised if the behaviour was intended to cause this harm or had the effect of doing so (even if unintended) and even where a person is wrongly perceived to be LGBTQ+.

What are the implications for employers who fail to prevent homophobic or transphobic harassment?

Generally, an employer will be legally liable (for potentially significant compensation) where an LGBTQ+ employee is unlawfully harassed by their colleagues, even if the employer was not aware of and would not have condoned the treatment. An employer will not be liable if they can demonstrate that they took all reasonable steps to prevent the harassment. It is important to note that managers or colleagues who have committed acts of harassment or other discrimination can be liable personally and could be ordered by an employment tribunal as an individual to pay compensation to a claimant.

It will be difficult for an employer to establish the “reasonable steps” defence if they do not, at least, have policies specifically designed to prevent discrimination, bullying and harassment against LGBTQ+ workers, or if they fail to provide adequate training, or to set a good example.

If an employee succeeds in a claim of harassment, an Employment Tribunal may make a declaration that the employee has been harassed; order the employer (and/or the individual harasser) to pay uncapped compensation; and/or make a recommendation about steps which should be taken to prevent or minimise any further harm to the employee. It should be noted that decisions of an Employment Tribunal are available to the public and regularly reported in the press, so there is a reputational risk as well.

What should employers do?

Avoiding legal liability is just one very good reason why employers will want to ensure that employees and workers are not subjected to harassment and discrimination. Employers should ensure that they set a good example, have appropriate policies in place to address issues of bullying and harassment, and make sure these policies cover homophobic and transphobic bullying.

Policies should be publicised and reviewed as appropriate. Employers should train staff and establish a clear route for people to raise concerns.

Douglas Strang is a senior associate and Kate Ross is a trainee at BTO LLP