Pride Month is a time to celebrate diversity, honour the LGBTQ+ community, and reflect on the progress made toward equality. However, it also serves as a timely reminder that legal and cultural work still needs to be done, particularly in the workplace.

As employment lawyers, we regularly advise clients on navigating the Equality Act 2010 (Act) and the protection it affords against discrimination. Sexual orientation is one of the nine protected characteristics under the Act, yet individuals still face both overt and subtle forms of discrimination from exclusionary workplace cultures to more explicit forms of bias. In this article, we explore what the law says, how employers can stay compliant, and what practical steps an organisation can take to foster truly inclusive working environments.

Legal Framework

The Act forms the foundation of anti-discrimination law in the UK, which seeks to protect individuals from various forms of discriminatory treatment based on nine ‘protected characteristics’, one of which is sexual orientation.

The Protected Characteristic – Sexual Orientation

Sexual orientation is defined under the Act as a person’s sexual orientation towards:

1. Persons of the same sex;
2. Persons of the opposite sex; or
3. Persons of either sex.

Importantly, the Act protects all sexual orientations and applies not only to employees, but also to job applicants, workers, apprentices, shareholders, and certain self-employed individuals.

It is also important to note that sexual orientation discrimination does not require someone to actually have or be the sexual orientation that they are believed to have. The Act also protects people from discrimination based on:

• Perception: Believing someone has a particular sexual orientation, even if they do not.
• Association: Being connected to someone who is a particular sexual orientation, such as a colleague, friend, or family member.

Types of discrimination

There are four main types of discrimination which are applicable in respect of sexual orientation as a protected characteristic:

1. Direct Discrimination

Direct Discrimination occurs when someone is treated less favourably than another because of their sexual orientation.  For example, if an employee were refused a promotion because they have a same-sex partner, this could be direct sexual orientation discrimination.

2. Indirect Discrimination

This occurs when a provision, criterion or practice (PCP) (e.g. a company policy) applies to everyone but disadvantages people of a particular sexual orientation. For instance, requiring all employees to attend work drinks at a venue which is known for being unwelcoming to LGBTQ+ patrons could amount to indirect sexual orientation discrimination.

It is important to note that in respect of indirect discrimination, an employer may have a defence if they can show their actions were objectively justified. This is known as a ‘proportionate means of achieving a legitimate aim’, essentially, whether there was a genuine business need, and whether the PCP was reasonably necessary to meet that need.

3. Harassment

Harassment is unwanted conduct related to sexual orientation that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This can include jokes, innuendo, or repeated comments about someone’s sexuality as well as violence, or indeed, threats of violence.

4. Victimisation

Victimisation occurs when someone is treated unfairly because they have done, or are intending to do, what is known as a ‘protected act’.  This includes the following:

1. Bringing proceedings under the Act;
2. Giving evidence or information in connection with proceedings under the Act, whether or not the proceedings were brought by that individual;
3. Doing any other thing for the purpose of or in connection with the Act; or
4. Alleging that the discriminator or any other person has contravened the Act.

For example, an employee who supports a colleague’s grievance about homophobic bullying and is then denied a training opportunity as a result may be experiencing victimisation.

Employer Responsibilities

Employers have a legal duty to prevent discrimination in the workplace and can be held vicariously liable for acts of their employees, unless they can demonstrate that they took all reasonable steps to prevent such behaviour occurring.

Reasonable steps may include:

• Implementing strong anti-discrimination and equal opportunities policies within their staff handbooks.
• Conducting regular EDI (equality, diversity, and inclusion) training.
• Ensuring managers understand how to handle complaints appropriately.
• Encouraging an inclusive and respectful workplace culture.

Common Issues and Practical Challenges

Even with robust policies in place, many LGBTQ+ employees face day-to-day challenges which may not meet the legal threshold for discrimination but still significantly impact their wellbeing. Common issues can include:

• Microaggressions: Subtle, often unintentional behaviours or comments that convey stereotypes or undermine an individual’s identity.
• A culture of ‘banter’: What some may consider harmless joking can amount to harassment if it targets or belittles someone’s sexual orientation.
• Outing – Disclosing someone’s sexuality without their consent may constitute harassment, as well as potentially causing significant distress to the individual, even if it was well-intentioned.

Fostering a Culture of Allyship and Inclusion

Legal compliance is the baseline, not the end goal. Creating a truly inclusive workplace will often mean going beyond the law. Employers can:

• Celebrate Pride Month meaningfully, not just performatively.
• Spotlight LGBTQ+ voices within the organisation.
• Support employee networks and mentoring schemes.
• Encourage inclusive language and behaviour.
• Review policies regularly with input from LGBTQ+ staff.
• Training should be ongoing, not one-off, and be inclusive of everyone from senior leadership to new joiners.

What does this mean for you and your business

Understanding your rights under the Act can be key to feeling safe, respected, and valued at work. If you’re an LGBTQ+ employee, or someone perceived to be, the law protects you from discrimination in all aspects of employment, from recruitment and promotions to everyday workplace interactions.

If you experience or witness behaviour that may amount to discrimination or harassment, you have the right to speak up, whether informally or formally, through internal procedures, or by seeking legal advice. Your employer is under a legal duty to take your concerns seriously and to prevent further harm.

Pride Month is an opportunity for reflection, education, and action. It reminds us that while legal protections are essential, culture change is equally important. Employers that champion diversity and inclusion not just during Pride Month but all year round stand to benefit from stronger legal compliance, more engaged employees and a safer workplace for all.

If you would like any further guidance on how your business can be legally compliant with sexual orientation discrimination, or indeed advice on how you can celebrate and support your employees, please feel free to contact our Employment Law team on 01604 936512 / 01908 953674 or email employment@franklins-sols.co.uk.

Two commonly misunderstood terms in employment law are Unfair Dismissal and Wrongful Dismissal, although they sound similar, they differ in their legal basis, focus and remedies.

Legal Basis

Unfair dismissal is governed by the Employment Rights Act 1966 and focuses on whether the employer’s decision to terminate the employee was justified and handled fairly. Employees are required to have a period of two years qualifying service in order to challenge their dismissal as unfair, if they believe it was without a valid reason or carried out improperly.

Wrongful dismissal, however, arises from contract law rather than statutory law. It occurs when an employer breaches the terms of an employee’s contract e.g., failing to provide the correct notice period (or payment in lieu of notice). A wrongful dismissal claim does not focus on the reason for dismissal but rather on whether the employer adhered to the agreed contractual terms.

Focus

For Unfair Dismissal, the focus is on the reason and process of dismissal, for example being dismissed for discriminatory reasons, without a valid reason e.g redundancy or not following a proper disciplinary or grievance procedure. For Wrongful Dismissal, however, the focus is on the contractual rights of the employee. For example, an employee might claim Wrongful Dismissal if the employer dismisses them without serving the correct notice period and the dismissal breaches other terms of their contract.

Eligibility

To be able to make a claim for Unfair Dismissal, employees generally need to have a minimum of two years qualifying period of continuous employment to bring a claim. Certain dismissals, for example those related to discrimination or whistleblowing are deemed automatically unfair and do not require a qualifying period.

For Wrongful Dismissal, there is no minimum service requirement and any employee with a valid contract can bring a claim for Wrongful Dismissal if their contractual terms are breached.

Remedies

Remedies for Unfair Dismissal are determined by a Tribunal and can include the following:

1. Reinstatement to the employee’s former role

2. Re-engagement in a similar role

3. Compensation, which often consists of a basic award and a compensatory award based onlost earnings and future prospects

Remedies for Wrongful Dismissal is primarily damages to compensate the employee for the financial loss caused by the breach of contract. This damage usually covers the unpaid notice period or other contractual entitlements e.g., bonuses or benefits.

Recent changes that have been made to the law

The government has recently introduced some reforms to the law which aims to enhance worker protections and modify existing employment practices. One of the biggest changes they have introduced is a day one right to claim Unfair Dismissal instead of needing to have a minimum of two years of continuous employment. This is beneficial to employees as they would gain immediate protection against being unfairly dismissed, which would improve their sense of security and confidence in their workplace. However, for employers, it would mean they would need to be more diligent from day one in documenting reasons for termination to ensure it complies with the law.

To conclude, Unfair Dismissal and Wrongful Dismissal both relate to the termination of employment, however their distinctions lie in the underlying laws, focus and remedies. Employers must ensure that they follow the correct procedures and contractual obligations to minimise the risk of disputes.

For employees, understanding these key differences can help in seeking the appropriate legal advice if they believe their dismissal was unfair or unlawful.

 If you are facing a dismissal issue and would like to seek legal advice further, please contact our Employment Law team on 01604 936512 / 01908 953674 or email info@franklins-sols.co.uk.

As we observe World Autism Awareness Week, let us reaffirm our commitment to creating workplaces that embrace diversity and empower all employees to thrive. By understanding and addressing the unique challenges faced by autistic individuals, we can build more inclusive and supportive environments where everyone can succeed.

In view of World Autism Awareness Week, it’s imperative to shed light on the challenges faced by autistic individuals in the workplace. Despite their valuable contributions, autistic workers often encounter bullying, harassment, and discrimination from both their managers and/or co-workers.

Startling statistics from the Office of National Statistics (ONS) paint a concerning picture: only 22% of autistic people are employed in any capacity, and a staggering 47% choose to mask their autism, keeping it concealed from their employers.

In this blog, we delve into ways employers can support autistic workers and foster inclusive work environments.

 Understanding Autism:

Autism, or Autism Spectrum Disorder (ASD), is a neurodevelopmental disorder characterised by difficulties in communication, social interaction, and behaviour. Autistic individuals perceive the world differently and may struggle with sensory processing, including challenges such as difficulty in communicating and interacting with others, sensitivity to bright lights, loud noises, and strong smells and challenges in understanding others’ thoughts and emotions.

Employers play a crucial role in creating an inclusive workplace where neurodiverse employees feel valued and supported. Here are some approaches to consider:

1. Adjusting the Recruitment Process

Some examples of adjustments that can be made in the recruitment process included allowing candidates to view questions in advance, allowing written answers, or even targeting recruitment for certain roles at neurodivergent people; all of which could help a potential neurodiverse employee overcome any challenges that the recruitment process might cause.

2. Address Sensory Sensitivities & Provide Reasonable Adjustments

Many autistic individuals are sensitive to sensory input, which can cause discomfort and distress. Employers can create sensory-friendly workplaces by providing noise-cancelling headphones, adjusting lighting levels, and using unscented cleaning products. In addition, reasonable adjustments may be necessary in the work environment that enable autistic employees to perform effectively. This can include modifications to physical workspaces, flexible work schedules, and alternative communication methods.

3. Encourage Disclosure

Employers should foster an open and supportive environment where employees feel comfortable disclosing their neurodiverse condition. This can help facilitate access to appropriate accommodations and support services.

4. Combat Discrimination

It is important for employers to understand that an employee’s neurodiversity could qualify as a disability under the Equality Act 2010. Discrimination of any kind has no place in the workplace and employers must actively address and prevent instances of bullying, harassment, and discrimination against autistic employees, fostering a culture of respect and inclusion.

For more information on supporting neurodiverse employees or combating workplace discrimination, please contact our Employment Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk 

Challenges and Future Directions

While there have been positive developments in menopause support, there is still much work to be done. The UK government and industry bodies can play a significant role in driving change by encouraging more companies to adopt menopause-friendly policies and practices. Moreover, fostering a culture of open conversation about menopause is crucial in creating lasting change.

The workplace has seen significant shifts in recent years regarding gender equality and employee well-being. However, one issue that has remained largely unaddressed is the experience of menopausal women in the UK workforce. A recent report by the Women and Equalities Committee (WEC) has drawn attention to the need for reforms in UK employment law to better support menopausal workers. This report marks a crucial step towards recognising the challenges faced by menopausal employees and addressing their specific needs. Some of the key findings and recommendations from the report include:

1. Inadequate Legal Protections: The report highlights that current UK employment law provides limited protection for menopausal workers. Menopause is not classified as a “protected characteristic” under the Equality Act 2010, leaving women vulnerable to discrimination and a lack of workplace support.

However, a recent case focuses on how the tribunal considered an employee as disabled at all material times by virtue of her symptoms of menopause combined with stress and anxiety symptoms. Albeit, the Equal Human Right Commission (EHRC) have confirmed that the case is the first involving an employment tribunal where menopause symptoms are deemed to amount to a disability for the purposes of the Equality Act. 

2. Stigmatisation and Lack of Awareness: The report underscores the significant stigmatisation surrounding menopause, which leads to many women feeling uncomfortable discussing their symptoms with employers or colleagues. A lack of awareness about menopausal issues exacerbates the problem.

3. Impact on Careers: Menopausal symptoms can have a substantial impact on women’s careers, causing productivity issues, increased absenteeism, and even job loss due to a lack of support and accommodations.

4. Recommendations for Reform: The WEC report recommends amending the Equality Act 2010 to explicitly include menopause as a protected characteristic. It also calls for increased awareness and training to address stigma and better support for women experiencing menopausal symptoms.

The WEC report highlights the urgency of addressing the legal gaps in employment law to protect and support menopausal workers effectively. The reasons behind why a reform is necessary includes Inclusivity, Reducing Discrimination, Promoting Awareness and Supportive Workplace Policies.

Menopause is a natural and inevitable phase in a woman’s life, typically occurring between the ages of 45 and 55. Despite affecting half the population, menopause has long been shrouded in secrecy and treated as a taboo subject, especially in professional settings. Women often suffer in silence, as the symptoms can be embarrassing or misunderstood by colleagues and managers who may lack awareness about menopause.

The impact of the menopause on a woman’s professional life can be profound. Physical symptoms, such as hot flushes and fatigue, can lead to reduced productivity and increased absence. Emotional changes, including mood swings and anxiety, can affect confidence and decision-making abilities. All of these factors can hinder career progression and job satisfaction.

Changing Tides

In recent years, there has been a noticeable shift towards recognising the importance of supporting women going through menopause in the workplace. Several UK companies and organisations have taken steps to create more inclusive and supportive environments for their employees. Here are some key initiatives:

1. Menopause Policy Development: Forward-thinking organisations have introduced menopause policies that outline how they will support employees experiencing menopause. These policies often include flexible working arrangements, adjusted uniforms, and confidential channels for discussing menopause-related issues. It also educates and raises awareness about the potential symptoms of menopause.

2. Training and Awareness: Companies are investing in training and awareness programs for their staff to help break down the stigma surrounding menopause. By fostering understanding, employees can better support their colleagues.

3. Menopause-Friendly Facilities: Some organisations have adapted their physical workplace environments to accommodate women going through menopause. This may include installing fans, improving ventilation, or providing a quiet space for relaxation.

4. Support Groups: Employee resource groups and support networks specifically focused on menopause have been established to create a safe space for women to share their experiences, seek advice, and receive emotional support.

5. Mental Health Support: Mental health is a critical aspect of menopause support. Providing access to counselling and mental health resources can be instrumental in helping women navigate this challenging phase of life.

Conclusion: 

Menopause is a natural phase in a woman’s life that deserves recognition and support in the workplace. By breaking the silence surrounding menopause and implementing supportive policies and practices, UK workplaces can create a more inclusive, understanding, and empathetic environment for their employees. Investing in menopause support not only benefits employees but also employers. A more inclusive and supportive workplace can lead to higher employee retention rates, increased job satisfaction, and improved morale. It also helps to maintain a diverse and talented workforce, contributing to long-term success.

The WEC report on menopause and employment law in the UK shines a light on an important issue that has long been overlooked. It calls for essential legal reforms to better protect and support menopausal workers. Recognising menopause as a protected characteristic under the Equality Act and raising awareness about its impact in the workplace can lead to a more equitable and supportive work environment for women going through this natural life transition. It is a critical step towards promoting gender equality and improving the well-being of the UK workforce.

Our Employment Law team is able to assist you with a review of your workplace policies and employee handbook.

Should you have concerns or simply require guidance on your company policies, please contact our Employment Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Coronavirus continues to dominate the news, spreading rapidly throughout Europe and the Middle East. The Coronavirus (COVID-19) causes respiratory illness, usually resulting in mild symptoms including runny nose, sore throat, cough and fever. Some individuals may experience more severe symptoms, resulting in breathing difficulties and, in extreme cases, death.

This Coronavirus situation is reasonably unique, in that the Government’s advice is that people should choose to ‘self-isolate’ as a precautionary measure if they feel they may be at risk of suffering from the virus (where because they are experiencing any symptoms or because they have travelled to areas which are currently suffering from significant outbreaks). An employer could therefore technically argue that a self-isolating employee is not ‘sick’ in the traditional sense, giving them an opportunity to choose not to pay usual sick pay.

This outbreak creates numerous employment law issues, including questions about travel, health and safety concerns and discrimination claim risks. Employers should start thinking about the following:

1. Sick Pay

An employer should follow their normal sick pay policy if an employee is unable to come to work. The Government has now provided clarification that an employee who has placed themselves under quarantine will:

• Be considered to be ‘sick’; and
• Will be entitled to an enhanced statutory sick pay, providing payment from the first day of illness.

Currently, the statutory sick pay rules means that an employee is only entitled to receive sick pay on the fourth day of any continuous period of absence. This emergency rule (meaning that employees receiving statutory sick pay would receive around an extra £40.00) is aimed at encouraging employees to self-isolate by alleviating financial pressures, rather than them turning up to work and potentially increasing the chances of transmission of the Coronavirus.

2. Race Discrimination Claims

There have been reports of unfavourable comments having been made to employees of Chinese descent, so it is vital that an employer must not treat an employee differently because of their race or ethnicity. Employers should also be aware that they could be liable if their employees harass other colleagues because of their ethnicity.

3. Workplace Closures

Whilst some organisations have chosen to close during this outbreak (such as Deloitte LLP’s London office), you do not necessarily have to close your office if someone with coronavirus comes to work. You should contact the Public Health England (PHE) health protection team immediately for further advice before deciding how to proceed.

4. Absent Staff

Some people might feel they do not want to go to work if they are afraid of catching coronavirus. Employers should listen to any concerns staff may have and must try to resolve them to protect the health and safety of staff. However, if an employee unreasonably refuses to attend work, an employer can take disciplinary action as a result of their unauthorised absence.

5. Proactive Steps

Employers should consider the following simple steps to help protect the health and safety of staff:

• Give out hand sanitisers and tissues to staff, and encourage its usage;
• Emphasize staying at home when sick;
• Consider if any travel planned to affected areas is essential;
• Make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly;
• keep everyone updated on actions being taken to reduce risks of exposure in the workplace; and
• Make sure their employee’s contact numbers and emergency contact details are up to date.

If you have any questions in relation to this story or any other employment-related issue, contact our employment law team on 01908 660966/ 01604 828282, or email Employment@franklins-sols.co.uk.

The Pregnancy and Maternity (Redundancy Protection) Bill was introduced on 21st May 2019. The bill proposes to extend the redundancy protection period for pregnant women and new mothers. Whilst employees do have additional rights whilst on maternity leave, the consultation proposes that employees will be protected for a further six months after they return to work.

Current protection from redundancy for employees on maternity leave

Currently, employees on maternity leave receive some protection from redundancy from Regulation 10 of the Maternity and Parental Leave Regulations 1999. Whilst an employee can still be made redundant on maternity leave, Regulation 10 entitles the employee to be offered any suitable alternative vacancy that may exist, even if there are more qualified employees who could take on the role. The employee does not have to apply or be interviewed for the vacancy but should be offered it in priority to their colleagues. If a suitable alternative vacancy exists and the employee is not offered I, the employee, would have a claim for automatic unfair dismissal and sex discrimination. This is a rare example of positive discrimination.

What is the proposed new legislation? 

The proposed new legislation is to extend this protection for new mothers, starting when the woman informs her employer of her pregnancy in writing and lasting for six months after her return from maternity leave. This protection would also extend to other employees, including men, who return from adoption or shared parental leave.

If you are pregnant or currently on maternity leave and not sure of your maternity rights, call us today to book an appointment with Ben Stanton, Partner – Employment Law.

The Australian Rugby Union player, Israel Folau (known informally as ‘Izzy’), has announced that he intends to bring a claim against his former employers for terminating his contract. Mr Folau had his contract with Rugby Australia terminated as result of a social media post he made which read, “Homosexuals, Hell awaits you”. The backlash resulted in a number of sponsors terminating their commercial relationships with Mr Folau and the termination of his contract with Rugby Australia

Mr Folau claims that his contract was unlawfully terminated by Rugby Australia, as he was merely expressing a religious belief that he genuinely holds. In commencing this action, he has stated that, “No Australian of any faith should be fired for practising their religion”. He is reportedly claiming up to AUS$10m (£5.5m) in damages.

What does the law say? 

Here in the UK, legislation was passed on 1^st December 2003 which made it unlawful for an individual to be discriminated on the grounds of their sexual orientation. The very next day, another Act was passed which also made it unlawful for someone to be discriminated against because of their religious beliefs. Both these rights are now included within the Equality Act 2010. However, since some religions hold homosexuality, or at least homosexual practices, to be ‘sinful’, there is clearly a potential for conflict between employees with opposing rights.

Whilst Australia is ruled by its own legislation, many cases of this nature have previously been brought before the UK Courts:

1. In Apelogun-Gabriels v London Borough of Lambeth (2005), Mr Apelogun-Gabriels, a Christian, printed out a range of Biblical extracts which his employer (Lambeth Borough) considered homophobic. He was dismissed for distributing these extracts to members of a work-based prayer group and other “interested parties”.

The tribunal dismissed his claim for discrimination, as it found that the distributed material was “totally hostile” to homosexuals and that the Borough would have treated a non-Christian who distributed similar literature in the same way.

2. In McFarlane v Relate Avon Limited (2010), Mr McFarlane, a Christian relationship counsellor, was dismissed because he did not feel that he could provide psycho-sexual counselling to same-sex couples as it conflicted with his religious beliefs.

The tribunal found that the employer’s legitimate aim was to provide a full range of counselling services to all sections of the community regardless of, among other things, their sexual orientation. It further considered that where an employee refuses to comply with principles that are fundamental to the employer’s aims (in this case, Relate’s equal opportunities policy) and which the employer has pledged to the public to maintain, the employer does not have to compromise those principles by making arrangements to accommodate an employee’s requests.

3. In Ladele v London Borough of Islington (2010), a Christian registrar refused to carry out civil partnership duties on behalf of Islington Council on the basis that same-sex relationships were against her religious beliefs. The Council dismissed her on the basis that it considered that her behaviour conflicted with its equality and diversity policy, and was discriminatory against the gay community.

The Employment Appeal Tribunal held that any other registrar who refused to carry out civil partnership duties for same sex relationships, whether it was connected to a religious belief or not, would also have been dismissed. Her religious belief was therefore irrelevant to the Council’s decision and her claim of direct discrimination therefore failed.

4. The issue has also arisen in the US in Peterson v Hewlett-Packard (2004), where the court held that Hewlett-Packard was justified in dismissing a worker for refusing to remove a poster with various biblical passages condemning homosexuality that he had put up in response to company posters welcoming gay employees.

What would happen if Mr Folau’s case was tried in the UK or US ? 

If Mr Folau’s case were to be determined by UK case law, or even in the US, it is likely that he would lose and that Rugby Australia would be found to have acted proportionately in achieving its legitimate aims, presumably being the aim of making rugby accessible and accommodating of all people in Australia. If this were to be a case decided on UK law, Rugby Australia’s decision would likely be considered to be entirely proportionate.

This author also considers that in his capacity as a role model to thousands of young rugby fans, Mr Folau’s actions will be subject to an enhanced level of responsibility and accountability for comments or behaviour that could be considered to be divisive; he is, of course, free to hold whatever opinions he wishes, but there was no legitimate reason for these to be communicated to the wider world via a social media post.

If you feel you have been unfairly treated due to your expressed religious beliefs or if you are an employer who has an issue with an employee expressing discriminatory religious beliefs and need advice please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966.