A recent BBC documentary asked why not one of the 5,000 professional footballers in Britain has come out publicly as gay?
The programme was presented by the niece of Justin Fashanu, the only ever openly gay British professional footballer who came out on the front page of The Sun over 20 years ago.
PR guru Max Clifford claims to know footballers who are gay but who are afraid that coming out will ruin their careers. He blames outdated attitudes in and around the game. In contrast, when cricketer Steven Davies told his England team mates he was gay in 2011, the great and the good of the sporting world lined up to show their support.
Any employer faced with an employee who comes out as gay at work for the first time may be unsure how they should react. In this article we explore how any employer (not just football clubs) can not only avoid the legal pitfalls but handle the situation in a way which helps to create a positive culture in their workplace.
An employee's sexual orientation is clearly something private which they should not be required to share with colleagues if they do not wish to do so. Other than in respect of equality monitoring (which should be anonymous) there is no reason why an employer needs to enquire into the sexual orientation of its employees.
However, work is a significant part of most people's lives; it can be an important source of social support and leisure as colleagues form friendships and even relationships in the workplace. Consequently, employees may wish to be open with their colleagues about their personal life, not least to avoid the stress caused in trying to maintain secrecy.
Footballers, although legally employees like any other, are perhaps in a unique practical position. They are constantly under the gaze of the media and fans. Any revelation about their private life to colleagues risks becoming very public, very quickly, possibly one reason why footballers have been reluctant to be open about their sexual orientation.
It is not just players but also those working in and around the game whose sexual orientation could become an issue. As ex-cabinet minister, David Laws discovered, a lack of transparency about their private lives can cause particular issues for more senior employees.
Undoubtedly, coming out takes courage and could be a particularly difficult where the individual is one of the first people in an organisation to do so. Employees are likely to be nervous about how colleagues will react or how it may affect their careers; they are likely to need support and understanding.
When an employee comes out as gay to colleagues there is the potential for an employer to fail to manage the situation properly and, in the worst case scenario, to incur legal liability.
Football clubs and other employers therefore need to understand what the law expects of them in a situation where they become aware that an employee is gay and think about how best to manage staff and others to create a harmonious culture in their workplace.
Under the Equality Act 2010 (the Act) sexual orientation is one of nine protected characteristics. Sexual orientation includes orientation towards people of the same sex, the opposite sex and either sex.
Employees and others are protected against direct and indirect discrimination because of their sexual orientation.
The Act also protects against harassment. Harassment occurs where there is:
"unwanted conduct related to" [sexual orientation] which has "the purpose or effect of violating [the victim's] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for [the victim]."
A person does not have to have a particular protected characteristic themselves to bring a complaint of harassment: the conduct in question need only be related to a relevant characteristic. For example, a heterosexual female employee who overheard derogatory comments directed at a gay male colleague may be able to bring a claim of harassment herself if the comments created an offensive environment for her.
Importantly, under the Act employers are liable for any unlawful discrimination or harassment by their employees which is committed in the course of their employment, whether or not the employer knows or approves of their actions. This is known as "vicarious liability" and means that an individual can bring a claim against their employer based on the actions of their colleagues.
An employer does have a defence if it can show that it took all reasonable steps to prevent the unlawful conduct.
An employer can, in certain more limited circumstances, also be liable for the unlawful actions of third parties such as customers and contractors and potentially, fans.
Each year a significant number of claims for discrimination on the grounds of sexual orientation end up in the employment tribunal: in 2010-2011 the number of claims issued in England and Wales was 640.
Given that compensation for breach of the Act is potentially unlimited, it is in employers' interests to ensure that they do as much as they can to prevent any unlawful discrimination or harassment of their employees (on all the protected grounds) in the workplace.
Information and confidentiality
Under the Data Protection Act 1998 information about a person's sexual life is "sensitive personal data" and enjoys enhanced legal protection.
If an employer becomes aware of an employee's sexual orientation - either directly or indirectly through other information such as the details given in respect of next of kin, they must keep this confidential. Managers should be reminded that even basic information such as a partner's name is confidential and they should never assume that it is common knowledge.
Action points for employers
- Ensure you have a diversity/equality policy of which all employees are aware, which explains clearly what discrimination and harassment is and that it is unacceptable in the workplace. Make sure everyone understands that you will take a "zero tolerance" approach to breaches of the policy.
- Ensure that contracts and disciplinary policies provide that action, up to and including dismissal, may be taken for breach of such a policy.
- Actively implement your policy by training all staff regularly on diversity matters.
- Clearly any bullying, harassment or discrimination in the workplace (on any grounds, not just in respect of sexual orientation) should be dealt with promptly and firmly. Communicate with managers to ensure they are aware that they must act quickly to investigate and deal with any complaints by employees. A manager's failure to deal effectively with issues encountered by an employee as a result of coming out could result in legal liability for the employer. For example, an employee may eventually resign and claim constructive dismissal if their concerns are not properly addressed.
- If you have third parties' employees in your workplace regularly, ensure your contractual documentation includes an obligation on that third party employer to deal effectively with any complaint about the behaviour of their employees and that you can require them not to come to your workplace if complaints are not resolved satisfactorily.
- Depending upon the nature of your particular workplace, consider if it would be appropriate to display notices for your customers if your employees are regularly dealing with the public, or to give details about your diversity policy to visitors to your workplace in some other way.
- Put in place data handling rules which are robust enough to ensure complete confidentiality for all sensitive personal data including information which might indirectly reveal someone's sexual orientation.
- It is up to employees to decide how and when they wish to disclose personal information and coming out is likely to be a gradual process with employees first revealing their sexuality to colleagues whom they trust to be sympathetic. It is therefore inappropriate for such information to be announced or disseminated to a wider audience more quickly than the individual themselves is prepared to disclose.
- Once an employee has disclosed information about their sexual orientation in the workplace they should obviously not be treated differently and should not be subject to any detrimental treatment by the employer as a result.
- Coming out is not necessarily a one-off event, an employee may tell different people at different times about their sexuality, they may find it more difficult to come out to certain colleagues than others. Where an employee is moving between departments or changing roles an employer should not assume the individual is happy for their new colleagues to be informed about their sexuality.
- The best policy for an employer is likely to be to avoid any direct or indirect reference to any employee's sexual orientation - it is irrelevant to their work. Attempts at humour based on an employee's sexual orientation e.g. in staff magazines or group e-mails are best avoided.
- There may be other employees who are not sympathetic to the employee's disclosure about their sexual orientation. Managers should be pro-active in setting clear boundaries for acceptable behaviour for all employees in their teams rather than allowing individuals with strongly held views to dominate. It is important that staff maintain a professional atmosphere and private views and preferences do not spill over into workplace conflict.
- If you are a larger employer operating in a sector or area where you believe you may have a significant number of lesbian, gay or bisexual employees consider establishing a support or networking group for such employees.
It is likely that there will be change within football in the coming years as it catches up with attitudes in the rest of society. Clubs therefore need to be prepared to responding sensitively to any gay player who comes out and consider ways of supporting them through the inevitable media furore. Handling the situation sympathetically is likely to be the most effective way for any employer to avoid legal liability.
The charity Stonewall has lots of guidance for those who want to find out more about best practice.