In 1967, the Sexual Offences Act decriminalised same-sex acts in private between men aged over 21 in England and Wales (this would not be legalised in Scotland or Northern Ireland until more than a decade later). However, legalisation did not lead to immediate changes in the treatment of LGBTQ+ people or greater employment protections, particularly given that employment law is often shaped by social attitudes.
The modern-day legal position on LGBTQ+ people has changed significantly since cases such as the 1980 case of Saunders v Scottish National Camps, in which a gay handyman was dismissed because his employer did not believe it was appropriate for a gay man to work at a children’s camp. The Employment Appeal Tribunal (“EAT”) found that the dismissal was fair.
This result came about due to the application of ‘the range of reasonable responses’ concept, which still forms part of contemporary unfair dismissal claims. This means that an employment tribunal should not look at what it considers to be ‘reasonable’ when deciding what is fair. Instead, it should ask whether a reasonable employer could have come to the same conclusion as the employer, considering the circumstances of the case.
In Saunders, the EAT found that the dismissal fell within the range of reasonable responses i.e. it thought that other reasonable employers would have made the same decision due to assumptions about Mr Saunders’ sexuality. It is inconceivable that an employment tribunal could make a similar decision today. Any attempt to dismiss an LGBTQ+ person based on such prejudiced views would now certainly be both unfair under the Employment Rights Act 1996, as well as discriminatory.
Under the Equality Act 2010 (“EqA”), there are comprehensive laws protecting people from discrimination and harassment on the grounds of sexual orientation and gender reassignment. There remains, however, a narrow number of exceptions allowed under the EqA, mostly relating to religious organisations and specific natures of the job in question. For example, a unisex gym could employ a changing room attendant of the same sex as the users of that room.
All recent opinion polls show that the majority of the UK no longer believes that same-sex relationships are in any way wrong. A large portion of the public, and a significant number of organisations, actively celebrate LGBTQ+ rights through Pride Month.
However, while attitudes have changed, presently people who oppose LGBTQ+ rights for religious reasons have their own rights under the EqA. In the 2022 case of Forstater v CGD Europe and others, an employment tribunal confirmed that gender critical beliefs are protected as a ‘philosophical belief’ under the EqA (although this decision is not legally binding on other employment tribunals). Modern employers must therefore perform a careful balancing act.
The rights of trans people are still more contested than those of other groups. By way of example, the Government has announced that it will be banning conversion therapy for those under the age of 18. However, the ban will not extend to cover conversion therapy aimed at trans people. Further, matters such as gender-neutral toilets are still openly debated in Parliament. From an employment law perspective, the consequences of gender critical beliefs becoming protected under the EqA are yet to be seen.
Social attitudes towards the LGBTQ+ community have played a pivotal role in shaping legislation, and as these social attitudes continue to evolve, so too does the law. Changing public attitudes towards equality have moved the law in the direction of a more inclusive society, although there remain unsettled issues and competing rights to be protected.
This article was first published in HR Magazine.