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This fact sheet contains information about the rights of lesbian, gay and bisexual workers and sets out a bargaining agenda for branches. It includes information on the law and a negotiating checklist, which is on page 8. In UNISON, lesbian, gay and bisexual members organise together with transgender members. There are many areas of common concern, but important areas of difference. There is a separate UNISON fact sheet on bargaining for transgender workers rights.

Lesbian, gay and bisexual workers face prejudice and discrimination when seeking work and once they are in a job. Every trade unionist has a responsibility to challenge this discrimination. It is part of our core agenda for workers’ rights.

Fifty two per cent of members responding to our last UNISON survey had experienced harassment or other discrimination because of their sexual orientation. This included

Verbal and physical abuse and threats from co-workers, managers or service users

Prejudiced and discriminatory attitudes about their suitability to work with children and other vulnerable groups

Nearly one in ten of the members experiencing this discrimination decided that the only way to stop it was to leave their job. Persistent harassment commonly leads to poor work performance and attendance, which in turn may lead to dismissal, with the root cause - homophobia - never being acknowledged. Many lesbian, gay and bisexual workers seek to avoid discrimination by concealing their sexual orientation. But such concealment comes at great personal cost.

Since December 2003, it has been unlawful to discriminate against people on grounds of sexual orientation in employment and training. The rights are set out in the Employment Equality (Sexual Orientation) Regulations 2003. The regulations were amended by the Civil Partnership Act 2004 to make clear that civil partners must be treated the same as married partners. The regulations represent an enormous step forward in tackling workplace discrimination. But if we have learnt one thing from 30 years of sex and race discrimination laws, it is that laws on their own change very little. It is up to us to negotiate policies and practices that make a real difference to the working lives of our lesbian, gay and bisexual members and to challenge prejudice and discrimination.

UNISON believes that lesbian, gay, bisexual and transgender people have the right to equal treatment, protection from discrimination and full support from the union. Allegations of discrimination will be taken very seriously. UNISON is developing an inclusive Equalities Scheme to promote equality across all grounds in everything we do.

LGBT members organise in UNISON at branch, regional and national level. There is an annual lesbian, gay, bisexual and transgender members conference and national lesbian, gay, bisexual and transgender members committee.

UNISON recognises that lesbian, gay and bisexual workers are not a homogenous group. For example bisexual workers, women LGB worker, black LGB workers and disabled LGB workers all face particular issues which we need to address.

Sexual orientation - defined in the regulations as orientation towards persons of the same sex, the opposite sex or both sexes; in common language - lesbian/gay, straight or bisexual

Homosexual - dated and quasi-medical term for lesbians and gay men, rarely used by lesbians and gay men, but sometimes used in formal documents

Homophobia - prejudice towards lesbians and gay men and fear of same sex attraction

Heterosexism - attitudes, behaviour or policies and practices that arise from the assumption that everyone is heterosexual

To out someone - to reveal another person’s sexual orientation, without their consent

Transgender person: a person whose own gender identity does not conform to the sex they were assigned at birth.

Transsexual person – legal/medical term for a person who lives or wishes to live permanently in the opposite gender to the sex they were assigned at birth

Indirect discrimination - a provision or practice that everyone has to conform to, but which some groups (eg lesbians) cannot meet so easily

Victimisation - in the law, ‘victimisation’ is a specific term to mean discrimination against a person because they have made a complaint or been a witness in another person’s complaint

The Employment Equality (Sexual Orientation) Regulations 2003 protect against discrimination on grounds of sexual orientation in employment and vocational training. They cover all sizes and types of employer and all types of worker, including agency, contract and temporary workers. They are similar in many respects to our race and sex discrimination laws and cover both direct and indirect discrimination.

· deny to lesbian, gay or bisexual workers benefits, facilities or services they offer to heterosexual workers, for example accommodation, childcare, travel concessions, social events (civil partners must have equal treatment with married partners and other same sex partners equal treatment with unmarried opposite sex partners)

· victimise someone because they have made a complaint of discrimination or given evidence or information in someone else’s complaint.

The employer must act to protect workers against bullying or harassment because of sexual orientation or because they are in a Civil Partnership. The perception of the person suffering the harassment is important in defining this.

The employer is automatically liable for discriminatory actions by anyone acting on their behalf, whether or not it was done with their knowledge, unless the employer can show that they had taken all reasonable steps to prevent such actions.

The regulations also outlaw discrimination by trade unions and other trade associations, professional bodies, qualification bodies, employment agencies, providers of vocational training, and protect students in all institutions of further and higher education.

These regulations do not protect transgender workers from discrimination (unless the discrimination is on grounds of their sexual orientation). The Sex Discrimination Act 1975 as amended by the Sex Discrimination (Gender Reassignment) Regulations 1999 protects from discrimination on grounds of gender reassignment. Protections also arise from the Gender Recognition Act 2004. There is a separate UNISON Factsheet on bargaining for transgender workers’ rights.

A post may be restricted to people of a certain sexual orientation if this is ‘a genuine and determining requirement of the post and it is proportionate to apply the requirement in the particular case’. There are very few jobs where being of a particular sexual orientation is essential to doing that job. Such a Genuine Occupational Requirement (GOR) must be identified at the beginning of the recruitment process and clearly stated in recruitment materials. GORs are always open to challenge and it is up to the employer to prove why it is necessary and justified in this case. Only an employment tribunal (or higher court) can give an authoritative ruling on whether a GOR is valid.

The regulations allow action to prevent or compensate for disadvantage for example by offering training or encouraging people to take up opportunities. Such positive action is essential to building true equality, rather than just removing the most blatant forms of discrimination.

Make sure there is a robust and comprehensive equal opportunities policy which is cross-referenced with all other policies. If sexual orientation - or another term with the same meaning - is not explicitly mentioned, most lesbian, gay and bisexual people will assume from bitter experience that their issues are not covered.

Check national or employer agreements. These must be followed up locally, but can be a useful starting point.

Every other policy should include an equal opportunities clause, stating that the policy will be implemented without discrimination and with regard to promoting equality.

As it can take time to work through policies, a first step can be to get agreement on an overarching statement. This is not a substitute for making sure all policies are LGB friendly, but until this can happen, other policies can be read in the light of this commitment to equality. While you have the employer’s attention, make the most of it and include gender identity as well.

A model statement on sexual orientation and gender identity is on our website at www.unison.org.uk/out.

AIMS Negotiate a comprehensive equal opportunities policy which specifically refers to sexual orientation, and which is incorporated into the contract of employment.

Ensure all other policies include a cross-reference to the equal opportunities policy/equalities statement.

Harassment is probably the most common form of discrimination experienced by lesbian, gay and bisexual workers. Most employers now have harassment policies but many do not refer to harassment on grounds of sexual orientation. There is still a perception that some groups are ‘fair game’. Bisexual workers often face additional prejudice. All too often, lesbian, gay and bisexual workers who complain of harassment are accused of being over-sensitive, having no sense of humour, or of ‘bringing it on themselves’ by not hiding their sexual orientation. Most lesbian, gay and bisexual workers fear to even make a complaint. Straight workers may fear reprisals if they complain about homophobia.

Good practice in tackling other forms of harassment will apply to tackling homophobic and biphobic harassment. Issues particular to this area include:

Confidentiality and being ‘out’ at work - our survey showed that nearly 40% of lesbian and gay members were not out (open about being lesbian or gay) to their managers. Our ultimate goal may be work places, indeed a society, where no-one feels the need to conceal their sexual orientation, but we are still far from that goal. The choice to come out is a personal one and depends on many factors. Just because some LGB people are out at work does not mean others in the same workplace will want to be. Most lesbian, gay and bisexual people are careful about who they are out to. They should be able to tell people, particularly their manager, without it being spread throughout the work-team.

Confidential complaints procedure - many lesbian, gay and bisexual workers do not complain about having to listen to homophobic abuse, because they are not out at work. The fact that the abuse is not aimed directly at them makes it no less intimidating and degrading. It is essential that the confidential complaints procedure enables people to make a complaint without fear of reprisal or of outing themselves to anyone apart from the designated person/people, who should not have to be their line manager.

Tackling harassment by service users - managers sometimes advise (or even instruct) front line workers who are lesbian, gay or bisexual to conceal their sexual orientation from service users or the public. They may say this is to avoid homophobia. This is only acceptable if it is applied to workers of every sexual orientation. If lesbian, gay and bisexual people are not allowed to talk about a same sex partner, it is not OK for straight colleagues to talk about their spouses or partners. This is obviously not the outcome we are seeking.

The proposal that people conceal their sexual orientation depends on workers and service users only ever meeting in the context of work. It may well happen that - by chance - service users see workers outside work. For instance, they may have children in the same school, or use the same local facilities. It is certainly not reasonable to expect workers to hide a same sex partner in their private life, so policies must deal with tackling harassment by service users or the public.

Harassment is specifically defined as unlawful in the Sexual Orientation Regulations.

It does not matter whether or not a harasser intended their behaviour to be offensive - the effect is just as important

Harassment does not have to be targeted at a particular victim - it may be that there is no known victim (for instance no lesbian, gay or bisexual worker who is out at work) but that the harassment creates a hostile environment

The perception of the person experiencing harassment must be taken into particular account, albeit alongside other factors, when deciding if harassment has taken place.

AIMS Make sure the harassment policy includes specific reference to homophobic harassment and includes:

- a confidential complaints procedure which workers can access without outing themselves

Perhaps partly because so many lesbian, gay and bisexual workers keep their family life private for fear of meeting prejudice, there is sometimes a perception that they have no family life. In fact, everyone needs to take time off for family responsibilities at some time in their working lives. Although non-traditional family patterns are increasingly common, they are still not recognised in many so called ‘family-friendly' policies.

The most recent statutory rights to maternity support, parental and dependent care leave all take a social view of parenthood and family rather than being based on biological or legally recognised relationships. This should help in getting employers to recognise same sex families. Check that the wording of policies is inclusive. Childcare policies should refer to ‘parents’ rather than ‘mothers and fathers’. Leave around the birth of a child should be called ‘maternity support leave’ rather than ‘paternity leave’. Any reference to marriage should also include civil partnership.

Many local special leave agreements are highly discretionary. This can cause enormous problems for people in same sex relationships who have homophobic managers or who are not out at work. This can be a crushing blow at what is already a stressful time - for example when bereaved or needing leave to care for a sick partner or partner’s child.

Negotiate a confidential point of contact for applying for special leave for people who – for good reason - do not want to go to their line manager. This might be a named person in the personnel department. In most cases, no-one else needs to know the specific reason why special leave has been granted. Assurances of confidentiality can be a lifeline to lesbian, gay and bisexual workers, but also benefit any worker needing leave to cope with personal circumstances they cannot talk to colleagues about.

Workers are sometimes expected to provide 'evidence' of relationships before being granted special leave. It is doubtful whether such evidence is really necessary to avoid abuse of the system. If procedures do allow managers to require evidence, make sure there is guidance on the type of evidence and that requirements are applied equally to all workers, whatever their sexual orientation.

When negotiating on work/life balance, remember that everyone has a right to a private and social life. For example, there can be an expectation that people without children will always provide cover at Christmas or work the most anti-social shifts. If lesbian, gay and bisexual people are perceived as having no family life, this can have a particularly negative impact on them.

Point out to the employers that the cost of making sure policies and terms and conditions apply to lesbian, gay and bisexual workers is minimal but will make a very big difference to the workers affected. Indeed, there is a clear business case in terms of improved attendance and retention.

AIMS Negotiate family friendly policies that are accessible to lesbian, gay and bisexual workers without having to jump through hoops to ‘prove’ their entitlement and which they can access without having to jeopardise their confidentiality, if this is what they want.

Make sure that work/life balance policies respect the different lives that people lead and do not end up discriminating against any group of workers.

Many employers’ IT firewalls and filters have very basic screening which blocks e-mails containing the words lesbian, gay or bisexual, automatically quarantining them as offensive, adult or unprofessional. This is not acceptable. There have even been cases of union activists hauled in under disciplinary procedures for receiving UNISON emails about LGBT workers equality. It can be hard for an individual to raise this so branches should make sure their employers do not block such e-mails.

Negotiations on policy should include agreement on publicity, implementation and monitoring. New and amended policies should be circulated to all workers, explaining why they have been adopted. Issues should be included in staff training.

Practice must be in line with policies. If there is an element of local managers’ discretion in implementation, members must be aware of their rights and know how to make a complaint if necessary. The complaints procedure should be confidential and well publicised.

Seek agreement on regular reviews of the effectiveness of the policies and how they are impacting on groups of workers facing discrimination. For example, a record should be kept of the numbers of complaints of harassment by lesbian, gay and bisexual workers, and the outcomes of these complaints.

AIMS All new or amended policies should include an action plan on equality, including equality for lesbian, gay and bisexual workers.

Local managers’ discretion should be kept to a minimum and confidential complaints procedures should be well publicised.

Monitoring of the take-up of policies should be put in place, to be fed into a regular review of their effectiveness and equalities impact.

Since workers have won legal protection from discrimination on grounds of their sexuality, there has been debate on whether employers should monitor their workers on this ground. UNISON and the TUC advise a cautious approach, spelling out the conditions that need to be met if sexual orientation monitoring is to be useful. There is guidance on our website at www.unison.org.uk/out.

Many lesbian, gay and bisexual UNISON members are not out in their branch. Your branch may not know of any LGB members – but be assured – they do exist. Even the government estimates that 6% of the adult population is lesbian, gay or bisexual. They are not all prison warders and hairdressers. Many work in the public services. Ideally, all branches should have a lesbian, gay, bisexual and transgender (LGBT) members officer, who can be a confidential point of contact. If no-one has come forward to take up this post, there is an even greater need to publicise regional and national LGBT events and information widely in your branch. This is the only way to reach members who need this information.

Make sure all other policies include an equalities clause - again, including sexual orientation

Pay particular attention to the harassment policy, ensuring it includes a confidential route for making complaints

Ensure family friendly and work/life balance policies work for people with non-traditional families and that they can be accessed without having to jump through hoops to ‘prove’ entitlement or jeopardise confidentiality

Reach agreement that policies will be widely publicised, training put in place and policies’ effectiveness regularly monitored and reviewed

Seek to ensure local managers’ discretion on how policies are implemented is kept to a minimum

If you negotiate a good agreement please send a copy to the Bargaining Support Group 1 Mabledon Place London WC1H 9AJ or e-mail bsg@unison.co.uk so we can share best practice. Examples of good agreements are at www.unison.org.uk/bargaining

Visit the LGBT section of the UNISON website for up to date advice, information and events – www.unison.org.uk/out LGBT members can sign up for a monthly email news bulletin and hard copy mailings on LGBT issues from the website.

Each region has a Regional LGBT Group – details of contacts are on our website. Regional contacts can put you in touch with your branch LGBT group or advise you on how to set a group up.

If you don’t have internet access, or for help when you need it, call UNISONdirect on 0845 355 0845 (voice) or 0800 0 967 968 (minicom) between 6 am and midnight, Monday to Friday and 9 am to 4 pm on Saturday.

UNISON Membership Participation Unit

1 Mabledon Place London WC1H 9AJ

out@unison.co.uk

recruitment and selection	pensions and other benefits
sickness and absence	disciplinary and grievance
career development	job evaluation
service delivery	procurement