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LGBT issues, guide for negotiators

This guidance was originally published by Proud, the voice of LGBT members of PCS.

This guidance covers:

Equality in the workplace

The protection and enhancement of lesbian, gay, bisexual and trans rights have come into force over a number of years through various pieces of legislation. In terms of major rights for lesbian, gay and bisexual workers the major piece of legislation was embodied in the Employment Equality [Sexual Orientation] Regulations 2003.

The Employment Equality (Sexual Orientation) Regulations

The Employment Equality (Sexual Orientation) Regulations 2003, gave protection to lesbian, gay and bisexual workers in the workplace.

The objective of the legislation is to protect LGB people from being discriminated on the grounds of their sexuality in the workplace in terms of employment rights. The legislation encompasses protection from all forms of bullying and harassment.

As the protection of rights is based on the “grounds of sexual orientation” this means that heterosexual workers have a right to make complaints under the legislation if they experience bullying and harassment because of their perceived sexuality or because they have been victimised for defending LGBT rights at work

The Civil Partnership Act

The Civil Partnership Act 2005, provides further harmonization and enhanced rights for LGB people. This act provided the means whereby LGB people could undergo a civil ceremony to publicly and legally register relationships.

Although not given the same legal status as marriage the legislation confers additional rights to those who have registered same sex relationships under the Civil Partnership Act., eg travel concessions for spouses or partners.

What the law says

The Employment Equality [Sexual Orientation] Regulations 2003 mean the employer cannot lawfully

  • Refuse to employ someone, nor can they decide to dismiss someone, because of their sexual orientation.
  • Refuse access to training, or promotion
  • Deny to lesbian, gay or bisexual workers the benefits, such as facilities and services, they offer to heterosexual employers, for example, access to insurance schemes, travel concessions, social events.
  • Give an unfair reference when someone leaves employment
  • Victimise a LGB worker by treating them less favourably if they have complained about alleged discrimination, or given evidence in such a case
  • Discriminate indirectly. This may happen when the employer sets out a particularly provision, criterion or practice that everyone has to meet, but one group cannot meet.

Employers must act to protect LGBT workers 

The employer must act to protect employees against bullying or harassment on the grounds of their sexuality.

Where a LGB worker perceives they are being bullied their perception is important as research indicates that abuse, bullying and harassment feature as the most prevalent forms of discrimination.

The regulations cover all employees, including contract workers.

The employer will be liable for discriminatory actions taken by their employees, whether or not it was done with their knowledge, unless the employer can show that they have tried to prevent such actions.

In the event that complaints cannot be resolved internally, employment tribunals have the jurisdiction to hear complaints once an internal grievance has been submitted and 28 days have elapsed with the submission of the grievance. Please note that complaints have to be submitted within three months of the act complained of.

Points for negotiators

Negotiators need to:

  • Review equal opportunity policies to ensure they are modified to reflect the changes and protection given to LGBT workers.
  • Sift employment policies and agreements such as carers leave, adoption leave, parental leave, occupational pensions to ensure that they are modified to cover the new rights acquired by LGB workers who have undergone a civil partnership ceremony.
  • Recommend to employers that they survey staff to ascertain incidents of harassment and bullying and work with employer to review and evaluate systems
  • Work with the employer to provide training to ensure that staff are made aware of the changes in the law and their responsibilities under the law

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Civil Partnership Act 2005

 

From December 2005, the Civil Partnership Act 2005 created rights on a par to heterosexual marriage for same sex couples who register their relationship as a civil partnership.

The legislation enables registered same sex couples to claim the same tax arrangements as apply to married heterosexual couples, the same access to next of kin rights, pension survivor benefits and no liability for inheritance tax.

Workplace policies need to ensure equality

Workplace policies need to be modified to ensure that same sex couples get time off for bereavement purposes, emergencies in the household, time off for looking after children and partners/ dependents if these are already the case for married heterosexual couples.

Registered same sex couples also acquire liabilities and responsibilities for children of their partners. Should they separate, payments for child maintenance are applicable. In addition, rights may accrue over future pension rights/benefits may be affected

Survivor benefits under pension benefits is an important benefit for registered same sex partners as the law provides for service to be backdated for 1998, the equivalent date as for widowers’ pensions.

This means that a surviving partner will benefit from survivor’s pension based on the contracted out pension rights accrued by their deceased partner from 1998 to the date of retirement or date of death if this occurs before retirement.

Pension schemes

All pension schemes must make changes to their rules to accommodate the changes brought about by the Civil Partnership Act, so that registered partners will become entitled to benefits arising from pension schemes.

Changes have already been made to the civil services pension schemes. Civil servants should have access to leaflet: Pensions for Partners – available from the Civil Service Pensions website.

Welfare Benefits

Another result of the Civil Partnership Act 2005, is that same sex couples co-habiting, irrespective as to whether or not they have registered under the civil partnership ceremony will now be treated as heterosexual couples in the same situation.

This means that there will be a loss of benefit [tax credits, etc] as incomes will be viewed as joint income in the household. For more information see the LGBT equality pages on the TUC website.

Negotiating Points

  • Negotiators need to ensure that workers are aware of the changes to pension schemes brought about the Civil Partnership Act.
  • Members have access to civil service leaflet setting out changes.
  • Try to negotiate changes to existing policies so that co-habiting non registered couples are entitled to benefits accrued under pension schemes.

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Trans people in the workplace

The process of gender change is slow and arduous and has significant consequences for the person undergoing change as well as their workplace colleagues.

The process can be very stressful requiring support and sympathetic handling from all concerned.

Confidentiality is paramount

Paramount to the success of this process is the need for absolute confidentially and the trade union working alongside with the trans member to ensure that there is a supportive and positive environment.

It is important to develop a plan with the individual covering issues of concern to the member to ensure co-operation of management and other workers as and when it is appropriate.

It will often be the case that individuals undergoing transition will wish to take leave before returning to work in their new gender.

Process of change

People receiving NHS treatment will commence the process of change by receiving specialist medical advice and diagnosis. They will be expected to commit to the “real life test” before being prescribed hormones.

People receiving private treatment may begin the process by being prescribed hormones before committing full time to the real life rest.

The next stage is that the individual begins to live the life of as a member of the new gender and may have records changed to reflect this, for example driving licence and passport.

The 'real life' test

The period during which the person is living and working in their new gender is called the “real life test”.

One year is the minimum period for the real life test recommended under the international standards of care, however NHS patients are likely to be expected to have a minimum of two years or more.

For those intending to undergo surgery, after one or two years of hormone therapy the person undergoes corrective surgery to complete, physically, the transition from the previous gender.

Negotiating issues

Equality policies need to be modified to ensure that gender reassignment is covered and individuals are protected under the anti bullying and harassment policies.

Most employers treat time off connected in relation to medical treatment in the way they treat other medical interventions/treatments.

It is important to secure the best arrangements that is possible ensuring that confidentiality and dignity are observed at all times. Consider special leave with pay arrangements.

Look at what arrangements are secured for ante natal absences, cancer treatments, etc. Try to come to similar agreements to cover absences related to pre and post operative treatments.

Depending on the capacity of the organisation, the member may wish to transfer to another position at the point which they adopt their new gender.

It is important transfers are discussed early with management in order to achieve positive outcomes.

It will be necessary to have a plan for support during the transition and post transition to address such questions as to what information and training will be required for managers and colleagues.

The support plan should include time off needed for medical treatment. This can vary from individual to individual.

The support plan will need to ensure that the employee’s personnel records and passes, eg, security passes are altered to reflect the employees new gender. The right of the individual to maintain the confidentially of their previous identity needs to be secured as part of this process.

Employers end to keep personal records for long periods and it needs to be ensured that access to past records that reveals the individual’s previous gender is strictly controlled and limited on a “need to know” basis.

It is recommended that a new file is created when the trans person acquires their new gender and the old personnel file referring to previous gender is stored separately. This will limit the incidence of breach confidence.

Negotiators need to ensure that no disclosure is made without the express permission of the individual. This applies to references if the employee decides to leave.

Where the employer enforces a dress code flexibility should be permitted during the transition period to respect the individual’s wishes as when it is comfortable to change into the attire appropriate for their new gender.

In relation to pension entitlement, the person acquires the liabilities and rights associated with the new gender. Negotiators should ensure that the employee is aware of their rights.

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