The introduction of the Equality Act in 2010 was a landmark legal development designed to offer workers fair protection from discrimination. However, at a recent conference hosted by the NASUWT teachers’ union, research suggested that the majority of lesbian, gay, bisexual and transgender (LGBT) teachers have been subjected to discrimination during their careers because of their sexuality.
The Equality Act
Under the Act, an employer cannot treat any employee less favourably than their counterparts based on any of the Act’s protected characteristics. In the case of LGBT teachers, this may include, for example, sexual orientation, gender reassignment and civil partnerships. Any such unfavourable treatment would constitute direct discrimination.
The Act also addresses indirect discrimination where an apparently neutral provision, criterion or practice has been applied without objective justification, putting particular employees, such as LGBT individuals, at a particular disadvantage compared to other groups. For example, if a school provides some element of remuneration or benefit to married couples only, such as reduced gym membership or enhanced overtime, this would adversely affect LGBT employees if there was no corresponding civil partnership provision.
The obligation not to discriminate applies equally to the actions of school management, other employees and external bodies such as recruitment agencies.
For example, if one teacher embarked on a campaign of hostility and bullying towards another based on their sexuality, the school would be held vicariously liable for the discriminatory acts if it had not taken reasonable steps to prevent the acts in the first place.
In considering whether reasonable steps had been taken, issues such as whether the school had an appropriate and effective equal opportunities policy in place and whether employees had been given suitable training on equality issues would come to the fore.
Who is protected?
The Equality Act is not concerned with whether or not the employee being discriminated against is actually LGBT; any less favourable treatment based on assumptions surrounding an employee’s sexuality or gender, is discrimination.
Therefore, if a teaching assistant comments on social media that a teacher is bad at his job because the teaching assistant believes he is gay, when in fact the teacher is heterosexual, this will still constitute discrimination.
The obligation to protect LGBT members of staff does not end at the school gates; it pervades through all areas of the employment relationship including job advertisements, recruitment and interviews, terms and conditions, conduct during employment, social interaction at some events, and post-employment relations such as references.
The cost of discrimination
In a successful tribunal claim for discrimination there is no limit to the amount of compensation that can be awarded. In addition, a school must factor in the time it has taken management to prepare for the claim and the legal costs involved. However, the effect of such cases extends much further than financial costs – discrimination claims are often highly emotive and can create negative publicity as well as having an adverse impact on the morale of the school.
Schools should take a proactive approach to looking at their current regimes and reviewing whether they adhere to the legal requirements set out by the Equality Act.
Following the NASUWT conference, Chris Keates, the union’s general secretary, said: “There is still a huge amount of work still to do in schools to create a climate where all teachers feel respected and safe, regardless of their sexuality.”
Every school should have effective policies in place to safeguard all employees who make their sexuality public. From the NASUWT survey, two thirds of LGBT teachers said it was “not safe” for them to be open about their sexuality. In addition, 60 per cent of respondents said their school has no policy explicitly opposing homophobia, biphobia and transphobia.
All standard policies, such as grievance procedures, should make specific reference to the prohibition of less favourable treatment on the grounds of an employee’s LGBT status. It is prudent to remember that if an employee complains of discrimination, their complaint must be investigated in a non-discriminatory manner; otherwise a new discrimination claim could arise based on the handling of the original grievance.
It should also be noted that the advent of social media has led to an increase in LGBT discrimination claims. Schools should outline a specific policy for employees and pupils in respect of social media, both in and out of school hours, in order to help address the potential problem of discriminatory conduct taking place online.
While having the right policies in place is a good first step, schools will need to continually review them in order to ensure they are compliant with current legislation and best practice.
Moreover, the policies must not simply pay lip-service to the legal requirements; the school management must sufficiently enforce the policy. This means adhering to the procedures put in place. If the policies are not administered properly, school employees will remain in the dark as to what behaviour is prohibited.
In order to support anti-discrimination policies, it is also important to provide adequate training to all members of staff. This could be conducted face-to-face or through an online training tool allowing employees to undertake independent diversity training which can be centrally monitored. Training should be given across the board, but is particularly important for senior employees, such as heads of department, who are more likely to deal with appraisals and interviews.
Providing training on best practice and grievance procedures will significantly reduce the chances of discriminatory behaviour arising, and in the event of a claim it will help demonstrate to the tribunal the steps the school has taken to reduce LGBT discrimination.
Undertaking equal opportunity monitoring can help a school to understand the diverse nature of its workforce and highlight any areas of bad practice. Anonymous surveys of employees joining or leaving the school can be particularly helpful to monitor diversity, but schools must ensure this data is handled appropriately and not used for anything potentially discriminatory.
In large education institutions such as universities and colleges there has been a growing trend of creating staff networks to give LGBT employees a platform for discussion and support.
A school could look to support its own LGBT employees in a similar way by aligning with LGBT networks in the community, starting one of its own, or creating a network with other local schools.
Along with staff networks, promoting events or initiatives run by LGBT charities such as Stonewall will help increase visibility of LGBT issues in the school and help create a respectful working environment for LGBT members of staff, highlighting to students the importance of tolerance.
The feedback from the NASUWT conference suggests that the Equality Act is failing to create an equal and fair working environment in the education sector. Unless schools alter their practices, they are in danger of being subject to discrimination claims.
By creating and implementing policies and training on LGBT issues, as well as promoting support networks and initiatives, schools can better support their LGBT employees.
Paul Maddock is chair of the staff LGBT network and member of the education sector group at law firm DWF.