Although it is not currently unlawful, tolerance towards homosexuality in countries such as Russia vary considerably, while others around the world still regard homosexual activities as a crime.
Pam Loch, managing director of Loch Associates Employment Lawyers and HR Advise Me Limited, examines what happens if you have an employee who keeps their sexual orientation a secret and then you require them to work in a country where it is unlawful or not tolerated.
Employee disclosure obligations
Generally, there is no obligation on an employee to disclose their sexual orientation. Indeed, if an employee is based in the UK or another country where homosexuality is regarded as lawful there clearly should be no issue. However, what happens if the employee’s role requires the employee to spend periods of time in other countries where it is not lawful?
The employer’s obligation
Employers owe their employees a duty of care have an obligation to look after their health and safety.
Given the obligations on an employer, there is an argument that those that place employees in countries where homosexuality is unlawful should make it clear as part of their recruitment process which countries the individual may have to work in. Of course, that may not be identifiable when the employment starts as attitudes may change. Therefore, if an employee is required to undertake a period of employment in one of those countries then the employer arguably should notify the employee at the point of the legal stance those countries take towards homosexuality.
This becomes more tricky where it is not specifically unlawful to be homosexual but where they could be an increased risk of assault if a person’s homosexuality is discovered – Russia is one example of this. Employers therefore need to keep an eye on global developments.
From our research, most employers do not make their employees aware of these issues, but it should form part of the normal risk assessment undertaken for international workers. Instead, most employers tend to abrogate responsibility to the employee and let them do the research. However, if the employer has taken no steps to alert the employee, or indeed protect them, they may not fulfil the duty of care that an employer owes the employee and could expose the employee to an injury that could have been prevented. This, in turn, exposes the employer to a successful personal injury claim.
What should you do if an employee objects?
What happens if you notify the employee that they are required to undertake a placement in Russia or another country where homosexuality is unlawful and the employee objects?
Clearly, you need to establish why the employee is refusing or reluctant to take up the post. If the employee refuses to disclose the reason then ultimately you would be entitled to take disciplinary action in response to a refusal to follow a lawful and reasonable instruction. This is of course assuming that the employee had accepted the role in the first place, knowing there were placements overseas, or you have a contractual right to request the employee to work overseas. If that was not the case, then as an employer you are in a weak position to impose such a requirement at that point.
If the employee discloses their anxieties around their sexual orientation, then you clearly need to take their concerns seriously. You should consider what alternative placements you may be able to substitute for the countries which present difficulties. You also should be aware that the list of countries may change and adjustments may need to be made.
If you are unable to accommodate changes to the countries where you had intended placing the employee then you may have to consider alternative employment while going through a process to exit the employee, for some other substantial reason based on their continued refusal to work in those countries.
It is important that you are able to show you have taken every step possible to accommodate the employee’s sexual orientation and tried to move other individuals’ placements to do so. This is particularly critical if you have failed to make the employee aware at the start of the employment your expectations that they will work in those countries.
As in every employment relationship, being open and transparent from the outset is critical for both parties. However, as an employer, you also need to keep a watchful eye on the ever evolving global culture we operate in and the impact it could have on your employment decisions.
