THEGAYUK

Tag: Legal Advice On Employment

We answer your questions about employment legal issues facing the LGBT+ community in the UK.

  • LEGAL CLINIC | Following the Turing Law, Am I entitled to claim for unfair dismissal and wrongful imprisonment?

    A reader asks now that the Turing Law is a reality, can he claim for unfair dismissal from the army and wrongful imprisonment.

    Am I entitled to claim for unfair dismissal and wrongful imprisonment?

    I am 55 years of age.

    I joined the army at 19. In 1983 I was court martialed for gross indecency, sentenced to 6 months in military prison and discharged with disgrace. Under the Turing law, I have since received a royal pardon and my record wiped clean both by the Home Office and the Ministry of Defence.

    My question is: Am I entitled to claim for unfair dismissal and wrongful imprisonment?

    John (Name changed)

    Dear John,

    Thank you for your question. I’m very glad to hear you’ve been able to use “Turing’s Law” to obtain a statutory pardon.

    Although the effect of the conviction being disregarded means the conviction should in all circumstances be considered as never having happened, the pardon itself does not retroactively change the status of the then applicable law. This means that, unfortunately, you cannot take any action for wrongful imprisonment because, according to the laws of the time – unfair as they were, the action taken by the court martial was lawful. Neither can you pursue the issue in terms of employment law. Court martial decisions are not covered by the Employment Tribunal (which is the only place you can pursue unfair dismissal claims) and in any event, claims have to be brought within three months of dismissal.  Employment law is incredibly restrictive at the moment and is generally thought to favour the employer over the worker.

    This means that, unfortunately, you cannot take any action for wrongful imprisonment because, according to the laws of the time – unfair as they were, the action taken by the court martial was lawful. Neither can you pursue the issue in terms of employment law. Court martial decisions are not covered by the Employment Tribunal (which is the only place you can pursue unfair dismissal claims) and in any event, claims have to be brought within three months of dismissal. Employment law is incredibly restrictive at the moment and is generally thought to favour the employer over the worker.

    You have suffered a great deal and I know you will be disappointed that this legal advice is not more positive. The key with employment law today is to act quickly and anyone suffering from discrimination at work because of their sexuality should to take advice from a trade union or a solicitor as soon as they can. Even if you are not a member of trade union now, or at the time of the discrimination, you should still contact a local union rep as they can help you nonetheless.

    Check your household insurance too: sometimes it will cover legal services without you realising. No one should have to suffer any detriment at work because of their sexuality, or any other characteristic that has nothing to do with their job, so if you are suffering in this way, please seek help.

  • LEGAL ADVICE | My ex-employer is telling old co-workers that I have HIV

    A concerned reader asks what his rights are since learning that his ex-employers are telling co-workers about his HIV status. Sarah Nolan, Head of Commercial & Employment Law at QualitySolicitors Jackson Canter answers.

    people at work
    CREDIT: ©-monkeybusiness-Depositphotos

     

    Dear Legal Team,

    I had to leave my job after I disclosed that I am HIV+. When I was first diagnosed I had to take extended time off from work to go to the doctors, because I was at first very ill.

    My line manager asked me why I was taking so much time off and I revealed my status. All was okay, but after two months – I was starting to get uncomfortable with comments that were being made by my line manager and the boss – who she disclosed my health info to.

     The “banter” turned quite nasty and it was ruining my life – and making my health worse. I decided to resign and we resolved the issues through ACAS – as a consequence I signed sort of gag order – which forbids me from talking to anyone about this… but now, after a few years – I had a text out of the blue from an ex-colleague who said that he knew I was HIV positive – the only people who knew my status were my line manager and the area boss.

     I did not disclose my status to anyone else and it looks as though my former employers have leaked my details. I’m wondering what I can do to make sure my health remains personal – and whether I should reopen my case with ACAS. I’ve tried emailing the company to discuss the text – and haven’t heard anything back from them – after two months.

     Best wishes

    (name withheld)

     

     

    Hi,

    Your question seems to involve the Data Protection Act 1988.

    The Data Protection Act 1998 is concerned with respecting the rights of individuals when processing their personal information. The act is mandatory and all organisations that hold or process personal data must comply its provisions.

    The Data Protection Act contains 8 principles:

    • personal data should be processed fairly and lawfully
    • data should be obtained only for one or more specified and lawful purposes
    • the data should be adequate, relevant and not excessive
    • it should be accurate and where necessary kept up to date
    • any data should not be kept for longer than necessary
    • personal data should be processed in accordance with the individuals’ rights under the act
    • data should be kept secure
    • personal data should not be transferred outside the European Economic Areas unless the country offers adequate data protection.

    All employers have responsibilities under the Act to ensure that their activities comply with the Data Protection Act. Employers are responsible for the type of personal data they collect and how they use it and they should not disclose personal data outside the organisation’s procedures, or use personal data held on others for their own purposes. ACAS provide some helpful guidance about this on their website (acas.org.uk).

    Employees have a legal right to access information that an employer may hold on them. This would include any personal information relating to your health. There is a 40 day time frame stipulated for dealing with any such requests.

    If you feel your old organisation has misused information or hasn’t kept it secure then contact the Information Commissioner’s Office (ico.org.uk).

    If you believe that the terms of the settlement reached with your former employer via ACAS have been breached then you should seek specialist legal advice in this regard or try to re-contact ACAS without delay.

     

    ALSO READ: I have heard my employer can dismiss me for being transgender – is this true?

    ALSO READ: Can a Landlord chuck me out if I’m LGBT?

     

    Have you got a legal query you’d like to ask our experts? Get your free advice here. Submit your question here

    Written by Sarah Nolan – Head of Commercial & Employment Law at QualitySolicitors Jackson Canter

    This response is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Individuals should always seek legal advice from a professional which is specific to their unique set of circumstances.

  • LEGAL CLINIC: Can I Get Fired For What I Say On Facebook/Twitter/Reddit?

    LEGAL CLINIC: Can I Get Fired For What I Say On Facebook/Twitter/Reddit?

    LEGAL CLINIC: Don’t Get Sacked Over Social Media

    Simon / Pixabay

    If you are on social media, then you may be aware of the controversy surrounding Facebook’s new ‘authenticity’ policy, which requires users to use their legal identity rather than a pseudonym.

    This policy has been met with resistance from LGBT groups who are concerned they may be ‘outed’ to any member of the public. Further, it means employers, clients and customers can see what you did this weekend.

    Zee Hussain, Employment Partner at Colemans-ctts (a trading style of Simpson Millar), provides an overview of your rights and provides guidance to ensure your professional and private lives remain separate.

    Be aware of how to manage your settings.

    On most social media platforms, you can choose what information can be displayed to the public, which extends to photographs, status updates and personal information. Facebook will allow you to put friends into groups with differing levels of privacy. Check the privacy policies concerned and adjust accordingly.

    Know your own rights.

    Whilst it is not unlawful for employers to search your social media profile, it is unlawful for them to discriminate against you due to a protected characteristic, such as your sexuality, gender, race, religion or disability. Therefore, if it is clear from your profile that you have a same-sex partner and the employer uses this as a reason to reject your job application, then this may mean you can make a claim under the Equality Act 2010.

    Employers that conduct searches can use external agencies to ensure they do not fall foul of the law. You are entitled to request a copy of any information that may be held on you under the Data Protection Act 1996.

    Make sure you know your employers social media policy.

    Different employers have a different approach to social media. Some will allow you to access your social media during worktime, some won’t. There may well be guidelines you are expected to follow to ensure your employers, and your own reputation, remain in tact.

    Don’t name and shame your clients.

    In the case of Preece –v- JS Wetherspoons, Ms Preece was a manager of a pub and had to bar an elderly and abusive couple one evening. She then went onto name and shame the couple and their antics to her Facebook friends, which unfortunately included the couple’s daughter. The tribunal found that the employer was justified in dismissing Ms Preece despite her many years of service.

    Watch your (virtual) mouth.

    Even years later, ranting on about how unreasonable your boss has been, how you are sick of your job, or even that you are hungover at work can come back to haunt you. In British Waterways Board v Smith, Mr Smith had posted numerous status updates which made derogatory comments about his work and indicated he had been enjoying a cheeky beer whilst on standby. Whilst there were no immediate consequences, Mr Smith was dismissed following an investigation some two years later.

    Unwanted conduct = harassment.

    Adding colleagues to your social media network is becoming the norm, and the office is increasingly a place where romantic partners meet. However, flirty text messages and risqué snapchat messages are not always welcome. Likewise, those off-colour jokes don’t sit well with everyone.

    Harassment is where unwanted conduct, whether of a sexual nature or related to a protected characteristic, creates a working environment that that is offensive, hostile, humiliating or intimidating to work in. Therefore, your employer can take disciplinary action against you (or a colleague) in this situation. If you are receiving messages from a colleague, then do turn to your employer for help if you are made to feel uncomfortable.

    Don’t be this girl.

    A few years ago a facebook post from a girl known as Lindsay went viral for all the wrong reasons. Lindsay had posted a status which said,

    “My boss is a total pervvy *****, always making me do **** stuff to **** me off!”

    Her boss got the final word by replying directly to the status:

    “Firstly, don’t flatter yourself. Secondly, you’ve worked here 5 months and didn’t you work out that I’m gay? Thirdly, that ‘**** stuff’ is called your ‘job’, you know, what I pay you to do. But the fact that you seem to be able to **** up the simplest of tasks might contribute to how you feel about it.

    “And lastly, you also seem to have forgotten that you have 2 weeks left on your 6 month trial period. Don’t bother coming in tomorrow.

    “I’ll pop your P45 in the post and you can come in whenever you like to pick up any stuff you’ve left here. And yes, I’m serious.”

    If there is one thing that will have hurt Lindsay more than receiving her P45, is the fact that the whole world seemed to enjoy her boss getting his own back.

    Social Media is a public forum, and in the click of a button, a comment or picture can be shared with thousands of users. We would recommend acting accordingly.

    It remains to be said that using social media as a means of communicating is clearly now a way of life. Posting messages may now be almost second nature, however, by remaining vigilant and attentive when using social media well certainly help avoid any difficult situations especially when it comes to work.

    Check out our free online legal clinic – where you can also ask questions from our expert legal team.

    by Zee Hussain

  • LEGAL CLINIC: Employment Law And Transgender Rights

    In recent months, the transgender community has faced a large degree of media attention, which not only has encouraged discussion around transsexual individuals, but has also shone light on the rights of individuals, no matter their gender or sexuality.

    Most notably, Caitlyn Jenner has been the centre of attention and whilst she has attracted an overwhelming level of support, there were still those who voiced their hostility towards her. Most notably, musician Drake Bell insisted on calling her ‘Bruce.’ There have also been further high profile cases including the case of Leyth Jamal who made a claim against Saks Fifth Avenue stating that she was told to use the men’s bathroom, told to dress more masculine, and eventually dismissed for being transgender.

    Unfortunately, cases such as these represent the tip of the iceberg for those undergoing gender reassignment, many of whom face abuse, discrimination and harassment from those around them.

    On a positive note, however, businesses and employers globally are now taking note of the importance of diversity in the workplace and are changing their approach accordingly. High profile employers such as Goldman Sachs and Barclays are already leading the way for acceptance and integration of LGBT employees. Like many other organisations, they recognise the need to retain the very best talent.

    Advice to individuals who are considering, or undergoing, transitioning to their target gender is conflicted at times and is often informed by US law, which is very different to our own. To follow are some common questions that we as a law firm have received from the transgender community, which we hope will provide guidance on your rights in the workplace.

    Here we look at your frequently asked questions about your rights.

    What does the law say?

    What about gender queer individuals, or those who adopt a different gender temporarily (e.g. transvestites)?

    I have heard my employer can dismiss me for being transgender – is this true?

    Do I have to disclose that I am transgender?

    I have decided to live life as my target gender, how do I ‘come out’ to my colleagues?

    My colleagues have been largely supportive, but there is one who is making me really uncomfortable by joking about my physical appearance and changes. What do I do?

    I have various treatments planned as part of my gender reassignment? Am I entitled to time off?

    In Summary

    Fortunately, social media has made conversations regarding gender reassignment easier and employers are becoming increasingly understanding of the issues faced by transgender employees. There are employers who will provide an environment where you are allowed to be your authentic self and rewarded for your skills and experience. Importantly, if there are evident signs of bullying or harassment concerning your gender or sexuality, speak to your manager or seek advice from a third party – don’t sit in silence, the law is there to protect you.

    By Zee Hussain, partner and Head of the Employment Department at Colemans-ctts

  • ANSWERS: Does the law protect gender queer individuals, or those who adopt a different gender temporarily (e.g. transvestites) at work?

    What about gender queer individuals, or those who adopt a different gender temporarily (e.g. transvestites)?

    (more…)

  • ANSWERS: I have heard my employer can dismiss me for being transgender – is this true?

    I have heard my employer can dismiss me for being transgender – is this true? (more…)

  • ANSWERS: Do I have to disclose that I am transgender at work?

    Do I have to disclose that I am transgender?

    There may be some circumstances where you may be obliged to disclose your gender history, such as for background criminal checks or insurance. However, this does not mean you have to disclose your biological gender to your colleagues or even your manager if you do not wish to.

    An employer has a duty to keep such information confidential and you can approach a manager or HR officer for advice if necessary.

    By Zee Hussain, partner and Head of the Employment Department at Colemans-ctts

  • ANSWERS: I have decided to live life as my target gender, how do I “come out” to my colleagues?

    I have decided to live life as my target gender, how do I ‘come out’ to my colleagues?

    Every individual’s journey is extremely personal. It is natural for people to ask questions but that does not mean that you have to answer anything you are not comfortable with and you should politely, but firmly, assert your boundaries.

    However, we would encourage you to discuss your situation with your manager in the first instance so they can make arrangements to cover any absence, and how you can be supported during your transition. For example, some people would prefer to tell colleagues on an individual basis and others would like an email sent out to their colleagues.

    By Zee Hussain, partner and Head of the Employment Department at Colemans-ctts

  • ANSWERS: A Work Colleague Is Making Me Uncomfortable Through My Transition, What Can I Do?

    My colleagues have been largely supportive, but there is one who is making me really uncomfortable by joking about my physical appearance and changes. What do I do?

    Firstly, be aware that you do not have to tolerate any behaviour or comments about your gender or transition that you find humiliating, hostile, degrading or offensive. This is known as harassment under the Equality Act 2010.

    However, there can be a number of ways to handle the matter depending on the individuals concerned. You could lodge a formal grievance and ask your employer to investigate and take action, or if you prefer, explain to the individual that you want the comments to stop. Either way, keep a diary of any incidents and keep your manager informed so they can monitor the situation.

    By Zee Hussain, partner and Head of the Employment Department at Colemans-ctts

  • ANSWERS: I have various treatments planned as part of my gender reassignment? Am I entitled to time off?

    I have various treatments planned as part of my gender reassignment? Am I entitled to time off?

    The Equality Act 2010 specifically states that an employer cannot treat you less favourably than any other employee because you have had time off as part of the gender reassignment process. As a result, we encourage employers to record such time off separately so it is discounted when considering any promotion, access to bonuses etc.

    Whether the time is paid depends on your employers policies. There is no obligation to offer paid leave unless there is company sick pay etc.

    By Zee Hussain, partner and Head of the Employment Department at Colemans-ctts

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