Can cracking homophobic jokes be illegal?

July 6, 2015

Lawyer, Sofie Lyeklint highlights the benefits and protection the Equality Act brings to employees in the workplace.

Sofie Lyeklint
Sofie Lyeklint

I found some old floppy discs the other day. On one of these was an article that I wrote when I was 16 titled ‘BISEXUAL – Having a hard time making your mind up sweetie?’

Incidentally, this was also the very article that prior to being published was left on my mother’s kitchen table by mistake by my then girlfriend. Evidently I’ve been out for quite a while now. Sadly, then and now, it is not difficult to be pessimistic about discrimination, victimisation, bullying and harassment of anyone who identifies with the LGBTQ community, especially in relation to how we treat each other in the workplace.

During our lifetime we spend as much time at work as we do sleeping. Plenty of time for things to go wrong. Our increasingly sexualised society still focuses on the sexual part of whatever label you identify yourself with.

At 16 I understood and accepted that it is really not about LGBTQ; it is about LOVE. How many of you can say the same?

Most people have inherent prejudices which are largely founded on their upbringing, cultural background and where they currently live. Some argue that discrimination is a hang-over from our pre-historic days or whatever our ancestors’ version of stranger danger was.

Today, some people choose not to act on these beliefs. Those who do, may express them in general workplace banter, hasty comments and sometimes don’t even mean to be (or realise that they are) discriminatory and/or offensive.

For instance, I am a woman, adopted from India, my nationality and national identity is Swedish, I am divorced, bisexual, a non-practicing Christian Protestant and 33 years old.

The Equality Act 2010 (‘EqA) prohibits direct/indirect discrimination, harassment and victimisation (‘Prohibited Acts’) because of age (or perceived age), disability (past or present), gender reassignment, marriage or civil partnership status, pregnancy and maternity, race (colour, nationality, ethnic origins, national origins), religion or belief, sex and sexual orientation.

Let’s see, how many of the protected characteristics I ticked?

Take a look around you. Your colleagues tick at least one, if not many, of these boxes, which means that employers have a legal responsibility to take such steps as are reasonably practicable to prevent breaches of the EqA.

This obligation also extends to being associated with someone who possesses a protected characteristic, recruitment, selection, training, promotion, dismissal, policies and practices and applies not only to employees but also to workers and (in some cases) even the self-employed. You can see how this is a potential minefield. Then again, if someone cracked a homophobic joke about me I most certainly would not be laughing.

Employers that condone and in worst cases encourage (which is a criminal offence) any of the prohibited acts will be vicariously liable. The offending employee is also personally liable. Employers should have written employment contracts (legal requirement after 2 months continuous employment) and staff policies to ensure that they keep within the law.

Managers should not only have a working knowledge of basic employment law concepts but also recognise when specialist legal advice is needed. Doing nothing is sure to be more costly and harmful to your business and reputation in the long run.

If you think you, your employees or colleagues may either be victims or in breach of the EqA do not suffer in silence. Seek professional advice. Regardless of whether you are an employer or employee workplace disputes are stressful, emotional and unpleasant for everyone involved. The legislation is there to protect both the employer and the employee and (hopefully) change the way we treat each other.