Safeguard Non-heterosexual Employees Aboard
The now long forgotten Winter Olympic Games held in Sochi brought to the foreground the legislative differences in the treatment of non-heterosexuals and same-sex couples around the world. On the face of it, this might not appear to affect employment or HR practices; however, in the domain of international assignments, it raises a significant issue, namely how to manage legalised sexual orientation discrimination in other countries where employees are placed (host countries).
Should this component not be properly considered and catered for, employers run the risk of inadvertently puttingtheir employees at risk or failing to demonstrate an adequate duty of care. For example, if the employee’s sexual orientation were to become known to their colleagues in the host country and the employee suffered harm such as bullying or harassment, could it be argued that the UK employer had some part to play? Moreover, if the host country’s laws or the local HR practices do not offer much reprieve to the employee from such treatment, it could be a very harmful experience for the employee.
The Equality Act 2010 prohibits direct discrimination on the grounds of protected characteristics, such as sexual orientation. It would therefore not be recommended to put in place a “blanket ban” on non-heterosexuals applying to these roles. Under sch.9 of the Equality Act 2010, the concept of “occupational requirement” – allowing direct discrimination against protected characteristics – has replaced the now repelled genuine occupational qualifications (GOQs). The GOQs were a limited range of circumstances under which employers were permitted to directly discriminate. Whereas previously, we had these specific lists for each characteristic, now (under the Equality Act 2010) there are only three conditions under which an occupational requirement may apply:
- Where the protected characteristic is an occupational requirement;
- The application of the requirement is a proportionate means of achieving a legitimate aim; and,
- Where the employee concerned does not have the requirement or the employer has reasonable grounds to believe they do not have that occupational requirement.
A ban on non-heterosexual applications to certain international locations would also be counterintuitive to the EHCR guidance (Guidance for employers about their rights under the Equality Act 2010) which states that the sensitive information (in this case, sexual orientation) gathered cannot be used to discriminate against employees. Moreover, how will an organisation determine a person’s sexuality, were it not given voluntarily by the employee? Making assumptions based on gender roles or behaviour is still direct discrimination based on sexual orientation.
The closest comparable case, which might help shed light on an employer guarding an employee’s safety through direct discrimination, is Amnesty International v. Ahmen  IRLR 884 EAT. Amnesty International had deliberately not appointed Ms. Ahmed to an international position because it was felt her race and nationality “might place her in heightened danger”. The EAT found Amnesty International’s decision not to appoint was based “predominantly” on racial grounds and therefore in breach of the Race Relations Act 1976 (Amendment) Regulations 2003. However, the EAT felt “unease at being required to reach this conclusion” and acknowledged the rare cases where an employer might be put in an “invidious position” as the law offers “no comfort” on the matter.
Amnesty International had sought to defend its decision based on its duties as an employer to an employee under s.2 (1) Health and Safety at Work Act 1974 (“HASWA”). This section requires employers “ensure… the health, safety and welfare at work of [its] employees”; and the EAT agreed with this defence, but within this case there were “other more reasonable steps” which could have been taken for Amnesty International to have met this legal obligation. This case proves two vital things. It means the HASWA has to be taken into consideration when placing employees abroad on international assignments. More importantly, it also highlights that other more reasonable steps must be considered before any ban is put in place. Though not exactly providing clear guidance for employers, it certainly helps in managing this difficult situation.
Here are some useful tips in managing this process properly:
1. Do research on the rights of non-heterosexuals in the host country
It is strongly advised that an organisation update its policies and procedures when expanding its global reach and also when sending employees abroad. The Foreign and Commonwealth Office, the BBC, and the International Lesbian, Gay, Bisexual, Trans and Intersex Association can prove useful sources of information. It is important that organisations focus not just on legislation, but also on the general political and social climate as these could vary significantly. Where possible, gain direct insight by researching any recent incidents of conflict, unease or violence against non-heterosexuals based on their sexual orientation.
2. Don’t discriminate based on sexual orientation, presumed or otherwise known.
When recruiting for international placements understand the risks involved within that particular location based on their laws and customs. At every opportunity during the recruitment process, notify potential applicants of these dangers and legal protections or lack thereof. Where the situation is acute, put in place other means of protecting employees, for example through extra security or minimising the work conducted in particularly dangerous areas. Only under extreme circumstances where these provisions would prove practically impossible for the role function, may you consider direct discrimination – and this should only be implemented with the advice of a legal professional.
3. Explain the risks involved to everyone not just those employees who have stated that they are non-heterosexual.
It is important that all applicants are informed of the risks irrespective of the employee’s publicly known sexual orientation. The organisation must not make presumptions as to the sexual orientation of its employees. By making assumptions based on assumed sexual orientation, through behaviour or rumour, the employer could be liable to claims of unlawful discrimination. Moreover, though they do not fall under the responsibility of the employer, the organisation should emphasise that these details be passed onto any visitors for their protection too.
4. Offer general support for their health and wellbeing: before, during and after the international assignment.
As with all good international assignment programmes – there needs to be preparation and careful planning before employees begin. Prior to their departure, employees should be offered support for both their physical and mental well-being. It is advisable, particularly for longer trips, that they are informed of various means to gain access to support for their mental wellbeing. The organisation cannot afford to implement a “one size fits all” approach – otherwise it would be failing to fulfil its duty under the HASWA duties. Put protective and supportive measures in place based on the research conducted earlier into local conditions for non-heterosexual individuals. Moreover, speak to the employee undertaking the assignment to understand what support they might find most beneficial. Consider the ways in which you might be able to accommodate their needs.
5. Do maintain contact with the governing body in the host country.
Even with an extensive amount of research, planning and preparation, there is still the need to account for emergencies. It is important that for each assignment the risks are evaluated and actions are put in place should they arise. Provide assigned employees with the most up-to-date contact details for the British Embassy or Consort. It is important that their role and the support they can offer, is outlined so that should the employee face any difficulties they would know who and how best to contact these institutions.
This aspect of HR and employment law remains very uncertain and there is thus far been little formal guidance on it in either legislation or case law. It is therefore important that organisations safeguard themselves and their employees by remaining open throughout their recruitment for international placements of the possible risks, and ways in which these may be mitigated. Only as a last resort, after having consulted their legal advisors, may organisations consider placing a ban on non-heterosexual employees applying for certain international posts. Instead their aim should be to safeguard the employee’s wellbeing through workplace adjustments whilst still meeting the business’s goals for the assignment.