Sexual orientation A practical guide for the NHS
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Sexual orientation A practical guide for the NHS
DH InformatIon reaDer box
Policy Estates
HR/Workforce Commissioning
Management IM & T
Planning/ Finance
Clinical Social Care/Partnership Working
Document Purpose Best Practice Guidance
Gate reference 9755
title Sexual orientation: A practical guide for the NHS
author Department of Health/EHRG
Publication date February 2009
target audience PCT CEs, NHS Trust CEs, SHA CEs, Foundation
Trust CEs, Directors of PH, Directors of Nursing,
NHS Trust Board Chairs, Special HA CEs,
Directors of HR, GPs
Circulation list
Description This document gives practical advice to
enable NHS organisations to address their
responsibilities relating to sexual orientation
and employment or healthcare delivery
Cross reference N/A
Superseded Docs N/A
action required N/A
timing N/A
Contact details Equality and Human Rights Group
Department of Health
Skipton House
80 London Road
London SE1 6LH
020 7972 5097
for recipient’s UseSexual orientation:
A practical guide for the NHS
Contents
Foreword 2
Executive summary 3
Section One: Context 4
Part One – Legal requirements and policy implications 5
Part Two – How the legal requirements are the same as other equality strands,
and how they differ 14
Section Two: Process – How to work with staff and patients 18
Part One – Understanding the needs of lesbian, gay and bisexual staff 19
Part Two – Assessing and implementing policies, practices and procedures for staff 24
Part Three – Involving lesbian, gay and bisexual staff 29
Part Four – Understanding the needs of lesbian, gay and bisexual patients 31
Part Five – Assessing and implementing policies, practices and procedures for patients 44
Part Six – Involving lesbian, gay and bisexual people 47
Section Three: Resources 50
Worksheet 1: Action planning framework for lesbian, gay and bisexual staff 51
Worksheet 2: Action planning framework for lesbian, gay and bisexual patients 56
Worksheet 3: Delivering inclusive services to gay men and men who have sex with men 62
Worksheet 4: Delivering inclusive services to lesbians and women who have sex with women 64
Worksheet 5: Delivering inclusive services to people who are bisexual 66
Worksheet 6: Getting everyone on board – frequently asked questions 67
Worksheet 7: Encouraging disclosure from service users and patients 69
Worksheet 8: Setting up a lesbian, gay and bisexual staff network 70
Worksheet 9: Monitoring staff 71
Worksheet 10: Working with lesbian, gay and bisexual staff – a ten point action plan 73
Worksheet 11: What help is available 75
Contacts 82
Contents 1Foreword
As an employer and a provider of healthcare
services, the NHS should not only comply
with the law but should also aspire to be an
exemplar of good practice and seek to ensure
that its services and employment practices
respond to the needs of the whole of our
society. This means that it is essential that we
strive to take account of everyone’s needs, in
the design and delivery of all our services
– including people from the lesbian, gay and
bisexual community. It is also essential that
This guide is part of a suite of guidance we strengthen our role as an inclusive
which seeks to equip NHS staff at all levels employer by removing barriers that might
– whether as employers or employees, or as prevent us from attracting, recruiting,
service providers, commissioners or planners developing and retaining people with the
– to understand the needs of all people. best skills and aptitude to make their careers
in the NHS.
There is increasing evidence of the health
inequalities experienced by patients and This guidance should create new work
service users as a result of their sexual programmes and activities that will enable
orientation and how this can be addressed NHS organisations to be more inclusive
through better access and targeted workplaces, reduce health inequalities
intervention. Increasing protection under the experienced by lesbian, gay and bisexual
law highlights the rights of lesbian, gay and people and help us achieve the priorities set
bisexual people to receive equal treatment in out in the NHS Operating Framework 2008/9.
the same way as everyone else.
Other existing public sector equality duties,
ongoing reform towards personalised services
and World Class Commissioning present a
real opportunity for NHS organisations to
reconsider the design of services to take full
Surinder Sharma
account of the equalities agenda. By
National Director for Equality and Human
developing expertise and implementing the
Rights, Department of Health
lessons learnt, we can embed equality at the
heart of all functions and structures and
contribute to a better understanding of our
staff and more informed, personalised
patient care.
2Sexual orientation:
A practical guide for the NHS
Executive summary
This guidance document, produced by the However, in developing an SES, it is
Department of Health (DH), gives practical important to understand that there are
advice to NHS organisations to help them significant differences between the legal
comply with recent equality legislation, requirements for the different equality
understand the role of sexual orientation in strands that must be understood in order
the context of healthcare, and integrate this that they are complied with. This guidance is
knowledge into single equality schemes (SES). designed to assist NHS organisations to
Other guides in this series cover disability, implement and comply with the requirements
gender, religion or belief, and trans people. of legislation on sexual orientation enacted
Age Concern are producing a companion recently, and also provides general practical
guide to age equality. The Race for Health guidance around the issues that fall out of
programme provides extensive guidance and that for the NHS.
support for the NHS on issues of race.
The guidance will provide a workbook and a
Many NHS organisations will already be one‑stop shop for information about the
working towards developing an SES. A single legislation and its impact. It will take readers
equality approach helps to bring together through the steps necessary for equality
parallel strands of key systems, for example impact assessment and planning for the
equality impact assessment, data collection integration of issues of sexual orientation
etc, needed to respond to the specific duties during the development of overall equality
of the different equality laws. This helps to schemes. Many of the processes, such as
utilise expertise and scarce resources more equality impact assessment and consultation,
effectively. It also contributes to a better are similar to those described for the other
understanding of staff and workforce issues equality strands, but the guidance will
and encourages a personalised approach to highlight any areas that need special
patient care, treating patients as individuals. attention for sexual orientation and will also
A combined approach will help to minimise provide a handy reference for cohesive and
the number of requests for information and collaborative working.
ensure that key personnel, for example public
health analysts, service managers,
administrative and frontline staff, are
encouraged to work together to ensure a
co‑ordinated approach to achieving
equality of outcomes.
Executive summary 3Section One: Context 4
Sexual orientation:
A practical guide for the NHS
Part One – Legal was decriminalised, people stopped using
these words.
requirements and Some men may be in opposite‑sex
relationships but engage in sexual activity
policy implications with people of the same sex. Healthcare
providers should not assume that men in this
This part begins by setting out some situation are gay, but should instead discuss
definitions. It then summarises the legislation behaviour. Healthcare providers should also
which gives rights to equal treatment consider the impact that any disclosure may
regardless of sexual orientation, and provides have on partners and therefore take steps to
practical illustrations of how the legal be discreet. Men in these circumstances may
framework impacts on health and social care not respond to preventive healthcare
providers and commissioners. messages in the same way as openly gay
men. This has long‑term implications relating
to sexually transmitted infections and other
What is ‘sexual orientation’? communicable diseases.
Sexual orientation refers to the general Homophobia is defined as hostility or
attraction a person feels towards one sex or prejudice based on a person’s status (actual
another (or both). Most people are familiar or perceived) as a lesbian woman or a gay
with the terms ‘heterosexual’ or ‘straight’, man, or someone who is attracted to
where people are attracted to the opposite someone of the same sex even if they do not
sex. Other people are attracted to people call themselves LGB. It can lead to
who are the same sex as them (lesbian or discrimination, bullying, harassment and, at
gay) or people of both sexes (bisexual). its worst, violent hate crime against LGB
people or those who are thought to be LGB.
Women who have a sexual orientation
towards other women are often referred to There are two issues to note, which will be
as lesbian, while men who have a sexual referred to again elsewhere in this guidance.
orientation towards other men are referred to First, most lesbians, gay men and bisexuals
as gay (although gay can also be used as a would consider that their sexual orientation is
generic term for both lesbian and gay only one aspect of who they are. In addition,
sexuality). Those people who have a sexual they will have a gender, an ethnic and
orientation towards both their own and the cultural identity, possibly a disability, a
opposite sex are usually referred to as religious or non‑religious belief, and of
bisexual. These three groups make up what course they will have an age – in other
is sometimes referred to as the LGB – lesbian, words, they will have ‘multiple identities’.
gay and bisexual – community. Each of these other aspects may have an
impact on how they are seen by people from
Generally speaking, the worlds homosexual different groups, whether at work or when
and homosexuality are outdated. These using the health service. It can also affect the
words used to describe the ‘medical illness’ services that they need and the way these
of being gay and therefore when being gay need to be provided. This guide will discuss in
later sections what consideration needs to be
Context 5given to issues of multiple identities, which laws which seek to achieve greater equality
will support any trust’s work towards a single on the grounds of sexual orientation. It is for
equality scheme. these reasons that the NHS has
commissioned separate guidance on trans
The second issue to note at this stage is that employment and healthcare (Trans: A
sometimes reference is made to LGBT practical guide for the NHS). However, trans
equality, where the ‘T’ stands for trans people, like everyone else, have a sexual
people. There are a small but significant orientation, and might be heterosexual,
number of people born each year whose lesbian, gay or bisexual.
gender identity does not match the
appearance and/or anatomy with which they Towards LGB equality
were born. A trans person is a person who
adopts the opposite gender to the one Recently, a number of legal measures have
assigned at birth. It is a term which embraces required people to be treated equally
different expressions of gender identity – regardless of sexual orientation.
including transvestite, transsexual and the
different points a trans person goes through
when they undergo a medical procedure to
• In 2001, the age of consent was equalised
at 16 for all
acquire their new gender identity. The
process is known as ‘gender reassignment’.
The term also includes people living in their
• In 2003, the Employment Equality (Sexual
Orientation) Regulations made it unlawful
new gender. to discriminate against a person in
employment and training on the grounds
Sometimes, issues of sexual orientation and of sexual orientation
gender identity have been aligned as if they
were very similar. It is true that individuals
from both groups have been treated unfairly
• Since November 2004, the Civil
Partnership Act has given same‑sex
in the past because of a lack of partners clear legal rights, similar to
understanding about their identities, and those previously only available to married
similar prejudices may apply to both. At one couples
time, both groups may have been thought of
as challenging established sexual behaviour,
and were treated similarly because of this.
• Since April 2007, the Equality Act (Sexual
Orientation Regulations) 2007 has
prohibited discrimination on grounds
LGB and trans people have undoubtedly of sexual orientation in the provision of
benefited from sometimes campaigning goods, facilities and services.
together for greater equality. However, sexual
orientation and gender identity are different
issues. They raise different questions of how
Equality at work
to promote equality and eliminate
The Employment Equality (Sexual Orientation)
discrimination. Different legal frameworks
Regulations 2003 make it unlawful to
apply to LGB people and to trans people;
discriminate in employment or training on
trans people have generally been included in
grounds of sexual orientation. The
sex discrimination legislation, or have specific
Regulations apply to all aspects of
laws relating to them under the Gender
employment and training, including
Equality Duty, which are separate from the
recruitment, promotion, terms and conditions
6Sexual orientation:
A practical guide for the NHS
(including pay) and dismissals (including also covers discrimination on the grounds of
selection for redundancy). In essence, the perceived sexual orientation, whether the
Regulations mean that it is unlawful to perception is correct or not. In this case,
discriminate at work against people who are applicants will not need to establish that they
lesbian or gay, heterosexual, or bisexual. They are gay to bring a complaint. If someone has
cover not only how people ‘are’, but how assumed them to be gay and discriminated
they are seen by others. This means that if against them as a consequence, that is enough.
someone thinks a person is gay (even if they The wording also covers discrimination by
are not), and discriminates against them, that association, so discriminating against
person is protected by employment law. It is someone because of the sexual orientation
up to employers to regulate the conduct of of their friends is not allowed.
their employees towards one another while
on duty, whether at work or out of the office Indirect discrimination is where an
on behalf of work, provided that the way organisation has employment rules, selection
they do this is reasonable and even‑handed. criteria, policies and other practices in place
which put people of a particular sexual
Organisations may be held responsible for orientation, including the person who
the actions of their staff as well as their staff complains, at a particular disadvantage when
being individually responsible. If a person compared with others. Indirect discrimination
believes they have been discriminated against can be unlawful whether it is intentional or
at work on the grounds of sexual orientation, not. However, in contrast to direct
they can bring a claim for financial discrimination, indirect discrimination is not
compensation for loss of earnings and injury unlawful if it can be shown to be justified as
to feelings and, in some cases, reinstatement a proportionate means of achieving a real
to their former job, at an Employment business need.
Tribunal.
Harassment is defined as unwanted conduct
The Regulations define four types of which takes place with the purpose or effect
discrimination: direct, indirect, harassment of violating the dignity of a person and of
and victimisation. creating an intimidating, hostile, degrading
or humiliating environment. The test for
Direct discrimination is where one person is whether a person’s conduct will be seen to
treated less favourably than another person is have these effects is whether “having regard
treated, has been treated, or would be to all the circumstances, including in
treated in a comparable situation, on grounds particular the perception of [the
of sexual orientation. For example, it is complainant], it should reasonably be
unlawful to decide not to employ someone, considered as having that effect.” Unwitting
to dismiss them, refuse to promote them, harassment is included. The fact that many
deny them training, give them adverse terms lesbians, gay men and bisexual people still
and conditions, or deny them benefits conceal their sexual orientation,1 often for
available to others of a different sexual fear of prejudice, renders them particularly
orientation because they are or are thought vulnerable to unwitting harassment. People
to be lesbian, gay or bisexual. ‘Thought to can often make anti‑gay remarks on the
be’ is included because direct discrimination mistaken assumption that everyone present is
1 Data derived from Stonewall Diversity Champion member staff satisfaction surveys indicate that half of LGB people are not out in the
workplace.
Context 7heterosexual, but it is clear that lack of
intention to offend is no defence. If the HERTFORDSHIRE PARTNERSHIP NHS
conduct has the purpose or effect of violating FOUNDATION TRUST
a person’s dignity, or creating an intimidating
environment, and it is reasonable for the Hertfordshire Partnership NHS Trust has
complainant to take offence, then it is reviewed all its policies, practices and
harassment. Ignorance is no excuse. procedures in line with their equality
impact assessment processes. The Trust
Victimisation is defined as treating someone has ensured that all policies reflect
less favourably because they have made a recent legislative changes to protect
complaint or intend to make a complaint lesbian and gay people, including
about discrimination or harassment, or have providing bereavement leave, adoption
given evidence or intend to give evidence leave or maternity/paternity leave for
relating to a complaint about discrimination staff who are married, in civil
or harassment. partnerships or with unmarried partners
of the same or opposite sex.
Civil partnerships: The Regulations were
amended when civil partnerships were www.hertspartsft.nhs.uk/about‑us/
established in 2004. Employers must treat trust‑papers/human_resources_policy_
staff who are in a civil partnership equally to and_procedures
those who are married, in a wide range of
areas. Employers should therefore ensure that
There are two main exemptions where
any benefits provided to married people
discrimination on grounds of sexual
extend to those in a civil partnership. The
orientation may be permitted, both involving
Regulations allow for certain benefits, such
occupational requirements. These are:
as survivor benefits in pension schemes, to be
conferred on civil partners and spouses to the
exclusion of others without such a status. The • where sexual orientation is “a genuine and
determining occupational requirement”,
effect is that an individual who is neither in a
and
civil partnership nor a marriage, whether gay
or heterosexual, cannot claim that such a
practice amounts to unlawful discrimination • in the case of “employment for purposes
of an organised religion”.
under the Regulations. However, the
Regulations make it unlawful for an employer
In general, where either exemption applies, it
to provide employment‑related benefits to
permits discrimination in refusing to appoint,
unmarried opposite‑sex partners but deny
promote or transfer people of a particular
them to same‑sex partners not in a civil
sexual orientation to a particular position, or
partnership.
in dismissing them from that position
because of their sexual orientation. However,
if people are already employed (whether the
employer realises their sexual orientation or
not) then unless and until they are dismissed,
the exemptions do not allow them to be
employed on less favourable terms than
others: for example, paid less, harassed or
victimised.
8Sexual orientation:
A practical guide for the NHS
In relation to the first exception, an employer Legal recognition for same‑sex
is allowed to discriminate if “having regard to
the nature of the employment or the context
relationships
in which it is carried out... being of a
The Civil Partnership Act 2004 means that
particular sexual orientation is a genuine and
same‑sex couples can now register a civil
determining occupational requirement”.
partnership to gain legal recognition of their
It must also be “proportionate” to apply that
relationship, entitling them to similar rights
requirement. This is similar to provisions in
and responsibilities to those of a married
sex discrimination law which allow employers
couple in a wide range of legal matters.
to advertise for a worker of a specific sex, for
As well as providing important rights, civil
example a female housing worker to work
partnership also allows people to
with homeless women, although it remains
demonstrate their commitment to each other.
to be seen in what circumstances an
employer can say that sexual orientation,
Civil partners are treated equally to married
whether lesbian, gay, bisexual or straight, is
couples across a wide range of areas. These
an essential ingredient of doing a particular
include:
job. It is possible that NHS organisations
could argue that staff who work in sexual
health clinics for men who have sex with men • tax, including inheritance tax
would have to be gay men, or an LGB drop‑
in centre have gay volunteers, but this has yet • most state and occupational pension
benefits
to be tested.
The other exemption allows employers who • income related benefits, tax credits and
child support
are part of an ‘organised religion’ to apply a
requirement relating to sexual orientation
“so as to comply with the doctrines of the • employment benefits.
religion”, or “to avoid conflicting with the The essential point for employers and those
strongly held religious convictions of a who deliver services is simple: treat staff and
significant number of the religion’s patients or service users who are civil partners
followers”. This exemption requires a very in exactly the same manner as you treat staff
high standard to apply and is very narrow in or patients who are married. In relation to
its scope, so, for example, a religious the health and social care sector, civil partners
organisation providing a service such as social are the legal next of kin to any service user.
care could not discriminate on grounds of Failure to treat a civil partner as next of kin is
sexual orientation when recruiting care staff. likely to be discriminatory. This guidance will
help NHS organisations to apply this principle
The other parts of this guidance are designed
as an employer and in the services they deliver.
to help you to make sure that you are
treating your employees fairly and in
accordance with these Regulations, whatever
their sexual orientation.
Context 9orientation, whether the perception is, in
“The department would not hold a reality, correct or not. The General Medical
collection for me (as with weddings), Council (GMC) suggests that failure to
individually sign the congratulations examine or respond to a patient properly, for
card or put a congratulations message example, not offering a smear test to a
on the white board. Certain people lesbian, or refusing to accept someone as a
would blank me if I spoke about my patient because of their sexual orientation,
honeymoon… I was told I was a nice could be considered direct discrimination.2
person but they did not agree with
what I was doing… Those who did Indirect discrimination occurs where a
congratulate me said it in private… provision, criterion or practice which is
the two line managers that support applied equally, puts a person of a particular
my lifestyle did not openly support me, sexual orientation at a disadvantage as
that is, they said nothing.” compared to some or all persons who are not
Nancy (Community specialist podiatrist) of that orientation and which cannot be
South East, Being the gay one, reasonably justified by reference to matters
Stonewall (2007) other than that person’s sexual orientation.
Indirect discrimination is more complex than,
and often not as obvious as, direct
Equal access to goods, facilities discrimination.
and services
Just as the 2003 Employment Regulations
The Equality Act (Sexual Orientation ensure that gay, bisexual and straight
Regulations) 2007 makes it unlawful to employees are treated equally, these laws
discriminate on grounds of sexual orientation extend that protection to service users.
in the provision of goods, facilities and Similar laws already protect service users from
services and the exercise of public functions. discrimination on grounds of their race,
They cover both the private and public gender and disability, and laws that came
sectors, including healthcare, and a wide into force at the same time as the Sexual
range of other areas. The Regulations make Orientation Regulations protect customers
two key kinds of discrimination unlawful: and service users from discrimination on the
direct discrimination and indirect grounds of religion or belief or lack of
discrimination. Victimisation is also covered – religion or belief.
so it is unlawful to treat someone less
favourably because they have complained or The Regulations give protection against
have brought proceedings or intend to do so. discrimination to everyone, whether they are
lesbians, gay men, heterosexuals or bisexuals.
As with employment law, direct The laws apply if discrimination occurs on
discrimination takes place when a person, on grounds of the sexual orientation of the
grounds of sexual orientation (or perceived person being less favourably treated or on
sexual orientation), treats another person less the grounds of the sexual orientation of any
favourably than he treats or would treat other person.
others. Direct discrimination also covers
discrimination on grounds of perceived sexual
2 Protecting patients: your rights as lesbian, gay and bisexual people, General Medical Council and Stonewall leaflet (2007)
www.gmc‑uk.org/news/articles/stonewall_flier.pdf
10Sexual orientation:
A practical guide for the NHS
There are a small number of exemptions to
discrimination under the Regulations. Certain CHARING CROSS HOSPITAL –
restrictions imposed by religious organisations THE ORANGE CLINIC
are excepted where this is necessary to
comply with the doctrine of the organisation, The West London Centre for Sexual
or to avoid conflicting with the strongly held Health (Chelsea and Westminster
religious convictions of a significant number Hospital NHS Foundation Trust)
of a religion’s followers. This will protect recognised that lesbian and bisexual
practices that arise from basic doctrines of women were less likely to take up
faith, such as religious celebrations, but not opportunities for sexual health
where a religious organisation is operating on screening and cervical screening
a commercial basis or providing services to because general healthcare providers
the community on behalf of and under sometimes do not understand lesbian
contract with a public authority. At that health needs. The Centre therefore set
point, the rights of lesbian, gay and bisexual up the weekly Orange Clinic which
people not to be discriminated against in provides a unique health service to
accessing those services come to the fore. So women who have sex with women.
again, a healthcare provider established by a Located in the West London Centre for
religious organisation is unlikely to lawfully Sexual Health, the clinic is promoted
be able to refuse to make its services through magazines and internet spaces
available to gay, lesbian or bisexual people. aimed at lesbians and bisexual women.
Having decided to serve the public, the The Clinic offers services that include
organisation cannot choose which sections of screening for sexually transmitted
the public they will and will not serve. infections, hepatitis B vaccinations,
cervical smear taking and sexual health
The Regulations also include an exception education and promotion. The clinic
which allows education, training and welfare also provides safer sex advice, free
services to be provided in such a way as to condoms, dental dams and gloves.
meet the special needs of persons on the
basis of their sexual orientation. One example www.chelwest.nhs.uk/hiv‑sexual‑health/
where this could apply is the addressing of west‑london‑centre‑sexual‑health.html
the low take‑up of mainstream sexual health
services among lesbians, gay men or bisexual
There is special provision in the Regulations
people.
for persons operating a blood service, such as
the National Blood Service (NBS). Such
services are allowed to reasonably exclude
donations by persons where this is based on
an assessment of risk to the public based on
clinical, epidemiological and other data
obtained from a reliable source. This
exception could cover the refusal of
donations from gay men, where this meets
the legislative criteria such as being tied to
close and regular monitoring of blood
samples from people donating blood in the
UK. The current policy of the NBS is that they
Context 11do not accept blood donations from men Resolving issues
who have sex with men (or from women
who have sex with men who have had sex Some people consider that their religion or
with men in the past).3 belief prohibits same‑sex relationships, and
employers and service deliverers can be
Harassment in the provision of goods, concerned about whether it is possible to be
facilities and services is not specifically fair to everyone in a situation where the two
covered by the Regulations, but in many issues may appear to be in conflict.
cases, harassment – usually defined as
unwanted conduct that has the purpose or It is true that some religions or beliefs
effect of violating a person’s dignity or prohibit same‑sex relationships. However,
creating an intimidating, hostile, degrading while one person’s religious convictions
or humiliating environment for them – on the should be respected, a lesbian, gay or
grounds of sexual orientation could amount bisexual person has an equal right to respect
to less favourable treatment on the grounds and should not be discriminated against. It is
of sexual orientation. The patient or service in fact unlawful to do so under the 2007
user could therefore have a claim under Regulations. All staff involved in healthcare
the Regulations. provision should take steps to inform
themselves (and educators and managers
Where a person believes they have been should ensure that this happens) of the
discriminated against in the provision of requirement that patients or service users be
goods, facilities and services, they can bring treated fairly regardless of sexual orientation,
a claim in the County Court for financial and of what this means, for example, not
damages, and/or for a declaration or making assumptions about what services are
injunction, to make the service provider do or are not appropriate, and not refusing to
something or stop doing something. provide treatment except in circumstances
Generally, service users who have covered by the Regulations.
experienced discrimination from NHS
organisations are encouraged to follow the The GMC sets out the principles of good
complaints procedures of that organisation, practice in its core guidance to doctors, Good
and only go to County Court if the matter Medical Practice.5 It tells doctors:
has not been resolved. It is hoped that the
goods, facilities and services regulations “You must not unfairly discriminate
will lead to an improvement in the delivery against [patients] by allowing your
of services, rather than an increase in personal views…about sexual
litigious cases.4 orientation… to affect adversely your
professional relationship with them or
the treatment you provide or arrange.”
3 In addition, exemptions or transitional arrangements which are less relevant here apply to:
• insurance companies who can use actuarial data about sexual orientation in order to assess premiums, although this was due to be
reviewed during 2008;
• religious adoption agencies who had until the end of 2008 to adapt their practices in order to comply with the new legislation;
• charities who can focus on a particular group if they were established to benefit specific people on the basis of sexual orientation;
• private members’ clubs where sexual orientation is specifically linked to the club’s purpose (if it is not, the club must treat everyone
equally and allow equal access).
4 Your rights as an LGB patient www.stonewall.org.uk/information_bank/health_matters/2334.asp
5 General Medical Council Good Medical Practice (2006) www.gmc‑uk.org/guidance/good_medical_practice/index.asp
12Sexual orientation:
A practical guide for the NHS
“…You must not express to your
patients your personal beliefs, including The BRITISH MEDICAL ASSOCIATION
political, religious or moral beliefs, in (BMA)
ways that exploit their vulnerability or
that are likely to cause them distress.” In June 2005, the BMA developed
guidelines on sexual orientation. These
This guidance applies to doctors’ personal guidelines explore equality and diversity
beliefs about sexual orientation; it sets a strategies for doctors in the workplace,
good standard for all staff involved in and provide information about service
providing healthcare. delivery. The development of these
guidelines demonstrates a commitment
It may be that the situation can be resolved by the BMA to create a practice that is
without offence to either party by speaking safe and non‑discriminatory. This
to the person who is refusing to carry out guidance is intended to provide doctors,
duties and reminding them of NHS equality managers, human resource managers
policies which apply to everyone, and of the and other healthcare related staff with
fact that discrimination on grounds of sexual essential information for preventing
orientation is also unlawful. It would also be discrimination based on sexual
sound practice to speak to local trade union orientation.
representatives and/or religious staff
networks on these issues and agree a joint The guidelines provide some practical
policy on how to proceed in such situations, steps to help create an inclusive
to ensure consistency in dealing with them workplace and service for LGB people.
before they arise. Homophobic behaviour Some of the initiatives that are
should not be tolerated under any recommended in the guidelines include
circumstances. creating awareness of the current
legislative protection for gay people
Worksheet 6 sets out ways of managing within the medical profession, providing
resistance to sexual orientation equality from confidential counselling services for gay
other staff, whether or not this is related to colleagues and regularly reviewing the
religious or other beliefs. medical curricula to reflect equality and
diversity for LGB people.
www.bma.org.uk/
employmentandcontracts/equality_
diversity/sexual_orientation/index.jsp
Context 13Part Two – apply for or take up a job or access training
and that it is reasonable to expect the
employer to make, in terms of cost and
How the legal difficulty, having regard, for example, to its
size and budget. A failure to make a
requirements are reasonable adjustment is in itself
discriminatory.
the same as other A second important difference between the
equality strands, different areas of equality is that protection
from age discrimination in employment is
and how they
qualified; employers are allowed to justify
conduct that is, on the face of it, overtly or
directly discriminatory. Neither of these
differ approaches applies to sexual orientation:
there is no wider concept of reasonable
This part considers how sexual orientation adjustments or failure to make them. In
equality sits within a single equality scheme addition, direct discrimination on the grounds
(SES), and how existing equality work by NHS of sexual orientation cannot be justified. This
bodies can be extended or adapted to cover makes the test for direct sexual orientation
sexual orientation. discrimination relatively straightforward: has
a person been treated less favourably than
someone of a different sexual orientation? In
Similarities and differences the case of indirect discrimination, you have
to ask: was a policy or practice applied which
Broadly, the requirement not to discriminate
had a disproportionate impact on people of a
on the grounds of sexual orientation in
particular sexual orientation? If so, could this
employment and training gives the same
be justified?
protection as that provided in employment
for gender including trans status, race or
The protection from discrimination on the
ethnicity, disability, religion or belief, and
grounds of sexual orientation in providing
age. Concepts of direct and indirect
goods, facilities and services is again very
discrimination, harassment, victimisation and
similar to that applying to gender including
discrimination by association are similar
trans status, race or ethnicity, disability and
– though not identical – across all the
religion or belief. There is no protection at
different equality areas. Some differences
present from age discrimination in relation to
exist: for example, there may be specific
delivery of services or provision of goods/
exemptions in each area.
facilities. Service providers are, like employers,
required to make reasonable adjustments for
In addition, disability discrimination law is
disabled service users, but not for other
based on the concept not just of less
groups.
favourable treatment but also of requiring
employers to make ‘reasonable adjustments’
Perhaps the most significant difference
for disabled applicants, employees and
between sexual orientation and the grounds
trainees. A reasonable adjustment is an
of race and ethnicity, gender, and disability is
adaptation that enables a disabled person to
14Sexual orientation:
A practical guide for the NHS
that there is not, as yet, public or positive
duty relating to sexual orientation. However, it QUEEN MARY’S SIDCUP NHS TRUST
is expected that organisations will integrate
actions to address issues on sexual orientation The Queen Mary’s Sidcup NHS Trust has
into their SESs and action plan. An SES developed a single equality scheme
enables NHS organisations to demonstrate (SES). This scheme includes similar and
that they have taken the necessary steps to equal protection for race, gender,
prevent discrimination on the grounds of disability, religion or belief, age and
sexual orientation, both in employment and sexual orientation. In order to roll out
service delivery, by including sexual the SES, the Trust has ensured that the
orientation in their monitoring practices and induction programme for doctors
equality impact assessments (EqIAs), together considers all equality strands, including
with the other equality strands of race, sexual orientation. The Trust has also
disability, gender, religion or belief and age. included action points in its Equality
The drawing up of a specific sexual Action Plan and intends to develop
orientation equality scheme, however, with mentoring opportunities for lesbian and
requirements for consultation or involvement gay staff. The mentoring programme is
of employees and service users from particular an extension of existing mentoring
communities, is not a legal duty. schemes that exist for women and for
black and minority ethnic staff.
This guidance is designed to give you
practical ideas and examples. What it aims to The Trust has also revised the content of
help you achieve is a consistently positive its ‘Healthy Diversity fact file’ to include
approach to equality for LGB staff, patients information about sexual orientation
and service users, focused on actions and and caring for LGBT patients.
outcomes appropriate to your core business
determined in consultation with LGB staff www.qms.nhs.uk/publications/
and stakeholders, allowing you to check Equality%20and%20Diversity.aspx
through monitoring that you are succeeding,
but not overburdening you with bureaucracy.
It is hoped that this will contribute to a Building on existing work:
productive workplace where staff are able to opportunities and challenges
be themselves, alongside services that reflect
the needs of a diverse community. Preventing Monitoring: Owing to existing equality
discrimination is more cost effective and schemes for race, disability and gender,
more inclusive than simply responding to organisations should already be collecting data
incidents of discrimination as and when they on the ethnicity of their employees, as well as
arise, and can help take account of the data relating to gender (including trans staff)
multiple factors of identity mentioned earlier. and disability. Ideally, you will want to do the
same for sexual orientation in consultation with
health service unions and LGB staff
associations. Monitoring staff enables
employers to examine the make‑up of their
staff. It highlights differences between groups,
such as minority groups or staff from particular
teams or grades, in terms of productivity,
Context 15satisfaction and progression. It can also help an Employee and service user involvement
organisation identify, tackle and prevent and consultation: Because of existing
discrimination against LGB staff, which can equality schemes, NHS organisations should
undermine productivity and cohesion. already be involving and consulting their local
communities on delivery of services, so some
The same is true of patients and service users: mechanisms, such as patient forums, may
NHS organisations may not necessarily want already be in place. It is possible these can be
to monitor service users on the grounds of used to consult on sexual orientation issues,
sexual orientation, but there are key steps although again this needs to be handled with
that can be taken to encourage disclosure sensitivity and to ensure confidentiality is
where this is relevant. This helps healthcare maintained. It is unlikely to be productive if
workers to deliver more effective and forums have not yet fully engaged local LGB
informed care. Being able to track different people and organisations. An alternative
service use and user satisfaction by, for approach may be to work with established
example, both sexual orientation and LGB organisations in the local area, as a
ethnicity or by sexual orientation and age, starting point.
can help you to better understand the needs
of these groups and how they may differ Staff opinions can be sought via network
from the mainstream, therefore tailoring groups where they already exist, or via trade
services more appropriately and ensuring fair unions and confidential staff surveys. In the
treatment. absence of (or in addition to) these it might
be useful to set up a staff network.
Past discrimination may lead individuals to be
reluctant to say that they are lesbian, gay or In order to get a truly representative range of
bisexual: for example, if there has been opinions, NHS organisations should consider
gossip at work, or a poorer service after breaking down the consultation process
disclosure or failure to respect confidentiality where possible in order to gather the views of
by a service provider. Research shows that lesbians, gay men and bisexuals from different
approximately half of lesbian and gay staff ethnic groups, of different ages, who are
conceal their sexual orientation from their disabled, or who hold different religious or
employers and co‑workers.6 non‑religious beliefs. Further ideas on setting
up staff networks and how to involve and
This makes it more difficult to collect data consult staff and service users can be found
and monitor the effectiveness of policies later on in the guide and in Worksheet 8.
relating to sexual orientation. Lack of
information should therefore not be taken to Assessing policies: It is considered sound
mean that there are no or very few LGB business and clinical planning practice to
people in your workplace or using your conduct equality impact assessments on
services. Suggestions on how to build employment and service delivery policies and
confidence, increase disclosure and monitor practices which cover sexual orientation. It is
staff are covered in Worksheets 7 and 9 in helpful if all staff are confident they will be
this guide. treated fairly and that the impact of policies
upon them has been considered. This sends a
positive message to staff that their employers
6 Feedback from Stonewall Diversity Champion members Staff Satisfaction Surveys.
16Sexual orientation:
A practical guide for the NHS
wish to support a harmonious work
environment. ROYAL COLLEGE OF NURSING
In addition, awareness of the impact of a The Royal College of Nursing has
particular approach on LGB patients and designed a programme that enables
potential service users is an important step in them to assess equality on the grounds
ensuring the effective delivery of personalised of sexual orientation. Diversity Impact
or individualised services; sexual orientation Assessments are an integral aspect of
may be an important factor in what services any project. All members of staff within
an individual needs to be able to access and the College must demonstrate how
the way they need to access them. sexual orientation equality has been
considered when developing any policy.
Therefore when developing new policies, This process encourages all members of
sexual orientation should be included in staff to involve a wide selection of
existing impact assessment procedures used members when developing policy.
for race, disability, gender and other
characteristics if it is practical to do so. www.rcn.org.uk/support/diversity/
Further information and suggestions for how diversity_strategies
to put this into practice are in Section 2, Part
Two (page 24) for staff and Section 2, Part
Five (page 44) for patients.
Action Planning: Objectives, outcomes and
timescales that arise out of equality schemes
should be clearly indicated to make it easier
to track progress. See Worksheets 1 and 2
for Action Planning Frameworks for lesbian,
gay and bisexual staff and patients.
Worksheets 3, 4 and 5 are checklists for
organisational policy and practice and may
also be used as slides for training or other
presentations.
Context 17Section Two: Process – How to
work with staff and patients
18Sexual orientation:
A practical guide for the NHS
Part One – most advertising campaigns, possibly
encouraging applications from high‑calibre
candidates who may not have otherwise
Understanding applied. The entire process is therefore a
unique opportunity for an organisation to
the needs of send out a message about what it values
both in its staff and in its wider community.
lesbian, gay and However, recruiters may have stereotyped
bisexual staff notions of what LGB people are good at or
not so good at, and these can affect
recruitment and selection decisions. Some may
This part looks at the evidence that exists believe LGB people will not fit in. Others, and
about the needs of LGB people in the this is illegal, simply do not want to appoint
workforce, and barriers to inclusion. There people they know or think are LGB. Excellent
are often significant gaps in managers’ potential applicants may not apply for jobs in
knowledge about the issues that affect LGB organisations they, rightly or wrongly, believe
staff, so a number of examples are provided. to be intolerant of LGB people.
Recruitment
GUY’S AND ST. THOMAS’ NHS
People are a vital resource for high‑ FOUNDATION TRUST
performing organisations. Recruiting and
retaining the best people from the widest In 2003, Guy’s and St. Thomas’ NHS
possible field is key to building competitive Foundation ran a recruitment drive
advantage. Staff selection is an obvious area known as the ‘We Need a Hand’
where unfair discrimination can occur, and campaign. The campaign, which was
has long been an issue for those concerned the first of its kind in the NHS, was
with race, gender and disability equality. intended to attract candidates that
Many organisations should already have a reflected the diverse population within
policy and set of procedures, plus training, in the boroughs of Lambeth and
place to support those involved in Southwark. This included black and
recruitment and selection. These can be minority ethnic candidates, disabled
adapted to ensure they address the candidates, and lesbian, gay and
challenges LGB people often face in bisexual candidates. The recruitment
advancing their careers. campaign included adverts in
newspapers and magazines, radio
However, there is much more to the adverts and posters at bus stops and
recruitment and selection process than underground stations. As a result of the
appointing an individual to a job. With each campaign more than 300 people
job advertisement, the organisation is applied for jobs with both hospitals.
potentially communicating with a huge The recruitment process has proved to
audience. How enquirers, applicants and be very successful for both hospitals.
candidates are treated can potentially give
rise to a network of discussion about the www.guysandstthomas.nhs.uk/working/
organisation that can extend further than sectionhome.aspx
Process 19A key feature of the guidance that
accompanies the race, gender and disability “In my final placement I decided to
equality legislation is that selection criteria tell my mentor and one or two of the
should be fair, related to the job, and applied staff [that I was gay] and in general
consistently. However, the criteria are only as I was treated well, but I began to
fair as the managers who apply them. feel uncomfortable with some of the
Providing training in issues relating to sexual comments being made by certain
orientation as well as in the other equality staff members, and it became obvious
areas for those involved in designing the that they disliked me. Some of the
selection process, shortlisting, interviewing comments were not directed at me,
and decision‑making is crucial to recruiting but said loud enough for me to hear,
fairly. such as ‘homosexuality is all wrong’,
and jokes about ‘feeling queer’ and
Workplace bullying and ‘Nowt so queer as folk’ etc. It was also
intimated that I was not trustworthy
harassment with the care of female patients.”
Paulina (Staff nurse) South West,
Anti‑gay harassment is demotivating and Being the gay one, Stonewall (2007)
unlawful. It can take the form of being
ignored or excluded; physical or verbal abuse;
‘outed’ as gay; or made the subject of jokes It is assumed that harassment on the grounds
and remarks. Extreme cases involve violence, of sexual orientation is under‑reported.
forced resignation or unfair dismissal. A recent survey indicated that almost one in
A generally hostile environment can be a five LGB people have been harrassed at
form of harassment, even where actions work.8 This means that the true scale of the
and comments are not apparently aimed at problem is unknown. As more and more
individuals.7 employers tackle the issue, however, evidence
is emerging that anti‑gay harassment is all
too common. LGB people who are from
minority ethnic backgrounds or disabled may
have experience of different kinds of
harassment, and there is some indication that
lesbians face a disproportionate amount of
sexual harassment at work.
It is thought that people are frightened to
complain because they believe their
complaints will not be taken seriously or they
will end up taking the blame. An added
complication for many LGB staff is that
making a complaint would force them to
come out as gay or bisexual, possibly leading
to further harassment. Since most LGB
7 Being the gay one: Experiences of lesbian, gay and bisexual people in the health and social care sector, Stonewall (2007)
www.stonewall.org.uk/healthcare
8 Serves You Right, Stonewall (2008) www.stonewall.org.uk/servesyouright
20Sexual orientation:
A practical guide for the NHS
employees are not completely out about their Managing performance fairly
sexual orientation at work, they might be
particularly vulnerable to harassment – Managing people properly, openly and with
homophobic comments made in the course respect is increasingly being linked with high
of conversation but without the intention of performance in businesses. Yet there is
causing direct offence. Such comments are evidence that LGB people are not always
often made in the belief that everyone in treated fairly at work, for example by being
the immediate audience will be sympathetic passed over for promotion, disciplined
to them. unfairly or even dismissed for no good
reason.9 This is now illegal.
Terms and conditions of
Organisations have many different ways of
employment managing performance, from informal chats
to systems of appraisal involving
Benefits and working conditions are
stakeholders, customers and peers as well as
important motivators for employees. Yet
managers. Most NHS organisations will be
some LGB people still do not always enjoy
following a formal procedure for objective
terms and conditions of employment equal
setting, appraisal and performance
to those of their heterosexual colleagues. For
management. However, people sometimes
example, some people with a same‑sex
have stereotyped notions of what they feel
partner may not receive the same workplace
LGB people are good or not so good at, and
benefits – these include pensions, leave
therefore which jobs or assignments are
arrangements, health insurance, travel
suitable for them. Both lesbians and gay men
concessions for employees and their partners,
are wrongly considered by some, by virtue of
and relocation allowances. Employers are
their sexual orientation alone, to be
now obliged to treat gay or lesbian staff who
unsuitable to work with children. In addition,
are in a civil partnership in the same way as
LGB people can be subject to unspoken
married people. To be sure that you don’t fall
assumptions that they cannot be trusted to
foul of the law, it is advisable to offer exactly
represent the organisation to the public. LGB
the same terms and conditions to both
people report feeling that they are often
heterosexual and gay staff.
thought of as not being team players. This
Leave for bereavement or family emergencies can arise because they are unable to be
is designed to help employees balance their entirely open about their personal or social
work and home commitments so that they lives at work. In addition, managers can fail
can be more effective in the long term. to spot homophobia and its effects on LGB
A policy that excludes leave for same‑sex people’s performance. They may not notice
partners can cause personal distress and lead that they are disregarded by colleagues or
to discrimination claims. badly treated by patients, let alone that there
are issues away from work, such as
harassment by neighbours or being excluded
by their families.
9 Research summaries: Sexual orientation and religion or belief discrimination in the workplace, ACAS (2007)
www.acas.org.uk/media/pdf/d/j/SORB_summaries_1.pdf
Process 21Discrimination on the grounds of sexual
orientation can also happen to heterosexual CAMDEN AND ISLINGTON MENTAL
people. For example, if the majority of a team HEALTH AND SOCIAL CARE TRUST
are gay, and the heterosexual members of
the team are in the minority, they might find In 2006, Camden and Islington Mental
they are treated differently. This is equally Health and Social Care Trust supported
unlawful. lesbian, gay and bisexual staff to set up
an LGB network. The network group
Establishing employee networks has provided the opportunity for lesbian
and gay staff to liaise directly, and
Employee networks – forums for staff regularly, with the management of the
who share one or more aspects of their Trust. As a result issues that affect
identity – are becoming more popular. lesbian and gay staff and service users
Increasingly, they are funded and promoted are considered when designing policy
by employers, rather than operating and practice within the Trust.
informally, as employers appreciate the
benefits they can bring to the whole Members meet regularly and produce
organisation. Networks for women and monthly newsletters. The newsletters
minority ethnic staff have proved successful are distributed across the Trust, and
across the public, private and voluntary have therefore been used to promote
sectors, and often provide useful lessons on lesbian and gay issues to members of
how best to establish a network for LGB staff not in the network. As a result,
employees, as do existing LGB networks in there has been an increased awareness
other similar workplaces or organisations. of issues that might effect improvement
in the delivery of care to lesbian, gay
Establishing employee networks can and bisexual people.
demonstrate commitment to diversity in the
workplace. It tells staff that the organisation www.islington.nhs.uk/valuing‑diversity.htm
values all its people, and recognises the need
to bring together staff who may feel isolated
or vulnerable. Networks can provide a safer
Monitoring
and more supportive working environment.
Some of the issues around monitoring have
In addition they can give the employer a
been set out earlier. Sexual orientation
valuable mechanism for consulting LGB
monitoring will only work if senior staff
employees about employment practices and
support the initiative and if a clear business
customer service, and also ways to engage
case for collecting the data is communicated
with LGB clients and potential recruits.
to staff. Sexual orientation monitoring is not
However, LGB employees may wish to
appropriate for an organisation which has
participate in a network without being outed
not previously engaged with LGB staff or
as gay as a result. They need to be confident
developed initiatives to eradicate
that joining or contacting a network is safe.
homophobia from the workplace.
Consultation with key stakeholders should
Worksheet 8 provides detailed practical
take place before monitoring is introduced.
information on setting up a staff network.
LGB staff, where known, and an established
network group can play a vital role in
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