In many ways it has never been easier to openly express an LGBTQ+ identity in the workplace with stronger anti-discrimination laws, equal marriage and legalised same-sex adoption. Despite this, studies suggest that 25% of LGBTQ+ young adults go back into the closet when starting work and 75% of lesbian and non-binary people fear coming out at work. 

Being out at work has a positive impact on LGBTQ+ colleagues’ wellbeing and increases the likelihood of retaining and attracting LGBTQ+ hires. In order to enable employees to safely come out at work, organisations should consider how their staff policies impact the psychological safety of LGBTQ+ employees and create an inclusive environment for all. We have set out a few key staff policies to consider.

Family leave policies

Staff policies around family leave may need to be tailored as LGBTQ+ parents are more likely to use alternative methods to start a family than heterosexual couples, such as sperm donation and IVF, surrogacy or adoption.

Statutory rights for employees who are starting a family must be provided by an employer and often these are reflected in family leave policies. These rights include:

• Employees who are adopting, fostering or having a child via surrogacy being eligible for statutory adoption leave for up to 52 weeks and 39 weeks pay (subject to the statutory requirements);
• Employees who are adopting being entitled to paid time off to attend up to five adoption appointments and employees using a surrogate having the right to take time off to attend up to two appointments with the surrogate;
• Non-birthing parents (such as the partner of the adopter or an employee expected to obtain a parental order for the child in a surrogacy) having the right to take up to two weeks of paternity leave (subject to the statutory requirements);
• Having an IVF policy in place, ensuring that staff are not put at a disadvantage when undertaking IVF treatment and have access to paid time off for IVF appointments; and
• The possibility for both partners in a same-sex relationship to take time off together if they choose to take shared parental leave which is a statutory right available to employees who have a newly adopted child or who have a child through surrogacy (subject to the statutory requirements).

In addition to statutory rights, many employers choose to provide enhanced leave or pay (for example, by “topping up” maternity pay to 100% of an employee’s salary for the first six months). If such enhancements are offered, consideration should be had as to whether this is offered to same-sex couples who are not eligible for maternity pay but may be eligible for an equivalent type of family leave such as adoption leave and pay, in order to ensure the policy is applied fairly and consistently.

Equal opportunities policy

Employers should also introduce an equal opportunities policy if they do not already have one in place. By having an equal opportunities policy, it can give job applicants and employees confidence that they will be treated with dignity and respect as it will set out the minimum standards of behaviour expected of all employees and outline what employees and job applicants can expect from their employer.

For employers with an equal opportunities policy already in place, the ECHR Code of Practice (which is taken into account by Employment Tribunals when deciding claims under the Equality Act 2010) states that it is good practice of employers to keep their equal opportunities policy under regular review at least annually and to consider employees’ needs as part of the process.

With that in mind, employers may wish to take this opportunity to review their equal opportunities policy to ensure it includes the following:

• a statement of the employer’s commitment to equal opportunity for all job applicants and employees;
• which characteristics are protected by the legislation and covered by the policy;
• what is and is not acceptable behaviour at work (also referring to conduct near the workplace and at work-related social functions where relevant) including specific examples;
• the rights and responsibilities of everyone to whom the policy applies, and procedures for dealing with any concerns and complaints;
• how the policy may apply to the employer’s other policies and procedures;
• how the employer will deal with any breaches of policy;
• who is responsible for the policy; and
• how the policy will be implemented and details of monitoring and review procedures.

Gender identity policy 

A more recent trend we are seeing is the implementation of gender identity policies. These are aimed at prohibiting discrimination, harassment and victimisation of employees on the basis of their gender identity and/or reassignment. Case law suggests that employers who are proactive about such measures are less likely to end up in dispute and there is research from Acas to supports this.

Such a policy can cover sensitive issues such as dress code for those that are transitioning and include information regarding the support available for employees transitioning at work such as seeking time off for appointments or procedures in relation to the transition. As part of this, employers should consider their sickness absence policy to ensure that employees who require time off as part of their gender re-assignment are treated no less favourably than employees absent because of sickness or injury.

Training

While the above policies are important, they should not be viewed in isolation. Employers should view these policies in conjunction with diversity and inclusion training for employees in order to bring the policies to life and embed them within the culture of the organisation.

This is particularly important for line managers who have greater responsibility in helping to create a diverse and inclusive workplace. There is also case law to suggest that employers that provide diversity and inclusion training consistently and provide regular refreshers to its employees, may be able to rely on this as part of a “reasonable steps” defence, to show that they took all reasonable steps to prevent employees from committing discriminatory acts.

Final thoughts 

Amendments and the introduction of staff policies and training are a great way for employers to take concrete action to demonstrate their commitments to promoting LGBTQ+ rights at work. Open discussion of these topics is key to fostering psychological safety and ensuring LGBTQ+ individuals feel comfortable and valued in the workplace.

If you would like to discuss any of your staff policies or require advice relating to diversity, equality and inclusion, please contact your usual member of our team or Kathryn Dooks.

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