LGBT+ employees abroad

The private client business is growing more international. The author’s law firm, for instance, had a single office in the UK during its first 104 years, but has since expanded to having offices in eight countries.

However, this firm is not unique, as other firms, trustees, accountants and banks have significantly expanded their international footprints. The business of wealth is now truly global and, consequently, one’s chances of being asked to work in another country are much higher than they have ever been. STEP has adapted to this by opening more branches across the world. The STEP Journal article ‘The laws of love’[1] included a survey of the legal and cultural issues relevant to LGBT+ people in each of the 64 jurisdictions in which STEP has a branch, showing that, in a lot of those places, the position is pretty dire. That article highlighted the significant challenge this presents to employers and employees alike in the context of international assignments. This article will explore that theme in more depth.

Open for Business (the Report),[2] a major report produced by a coalition of dozens of the world’s most prestigious companies, found that LGBT+ employees are very willing to work abroad: over 70 per cent of respondents were willing to take up short‑term assignments abroad and 50 per cent long‑term assignments. This is good news for employers who naturally wish to be able to relocate the best person for a role. The Report also found a clear link between inclusivity and competitiveness. This makes perfect sense as, to be successful, a business needs to attract the best people, and this becomes much easier if the pool of candidates is not restricted by a particular race, sex, gender identity or sexuality.

The bad news is that 69 per cent of LGBT+ professionals cited ‘discrimination laws’ as a reason for rejecting an international assignment. That is a staggeringly high figure and the situation does not get much better for those LGBT+ employees who do agree to go. The Report found that only 45 per cent of LGBT+ people who feel completely comfortable about being open about their sexuality and/or gender identity in their primary office felt the same way when on an international assignment. So, not only are LGBT+ people reluctant to work in countries seen as hostile to them, but if they do go, they feel pressure to conceal their true self, even from their colleagues. These are disheartening statistics and demonstrate that there is still a long way to go.

Evidently, employers cannot do anything to change the laws or the culture of the countries in which they operate. However, that does not mean they should ignore the problem; indeed, much can be done to ameliorate the situation. For instance, the Report found that over 90 per cent of LGBT+ employees who have worked abroad did not receive information about LGBT+ laws, networks and culture before or after being offered the assignment. That is not good enough.

Legal issues

Allowing LGBT+ employees to simply fend for themselves in a hostile environment abroad is not only morally wrong, but also potentially unlawful. The UK Equality Act 2010 protects people from discrimination, both at work and in a broader context, and makes it unlawful for employers to discriminate against employees with certain protected characteristics. This means that employers who do ignore the problem do so at their peril.

A report from LGBT+ rights organisation Stonewall found that 50 per cent of countries do not have laws that protect LGBT+ employees from workplace discrimination,[3] and that same‑sex intimacy is criminalised in over 70 countries. This being the case, if an employer sends an employee to one of those countries, it needs to think carefully about the implications. It is important not only to inform employees of the local legal issues, but also to plan for things that may go wrong.

The same report helpfully sets out some guidance to employers to help them support and protect their LGBT+ employees and, by extension, stay within the law. The first step is for the employer to carry out a risk assessment before asking anyone to work abroad. This should examine the laws and culture in the destination country, identifying issues that could be relevant to LGBT+ employees; for instance, the criminalisation of same‑sex intimacy. Because employers will not always know if someone is LGBT+, they should ensure the assessment is comprehensive and considers the different risks for people in different demographics of the LGBT+ umbrella. For instance, the issues facing a single gay man will be different from those facing, say, a married lesbian with children or someone whose gender identity differs from their sex assigned at birth. The laws vary too. In Iran, homosexuality is punishable by death, but being transgender is not illegal.

Another step is to introduce a ‘mobility policy’ that sets out a company’s approach to relocating employees, including LGBT+ employees, and provides relevant information about the destination country. Most employers will feel that they are not experts in this area, but there are various online resources available, such as the Stonewall country briefings and International Lesbian, Gay, Bisexual, Trans and Intersex Association resources.[4],[5]

Employers should be clear in their policy that LGBT+ employees will not be penalised if they reject the assignment because of their concerns about the legal or cultural environment in a particular country. Wherever possible, there should be an option of an alternative assignment if the original is not acceptable to an LGBT+ person.

Employers should also have clear policies on the immigration process, such as support for partners and children, regarding arrangements for visas, health insurance, accommodation and schools.

Once a firm has expatriated an LGBT+ employee, it is important to have sufficient in‑country support to ensure the assignment is successful. Where the employee consents to their sexuality and/or gender identity being shared with the local team, and it is safe to do so, it is recommended that there be an in‑country manager responsible for integrating and supporting the employee in question. They can provide essential resources, including access to local support networks and information. This support should include a clear policy for handling problems and, where necessary, for evacuation home. This information should be freely available to anyone expatriated, irrespective of what is known about their sexuality or gender identity, to make sure that anyone can access the details without having to ‘out’ themselves first.

Evacuating an employee may sound dramatic, but, as stated above, there remain 70 countries that criminalise same‑sex intimacy.

Example

A gay man who moves to Zambia on assignment with his husband in tow will pretty much be breaking the local law from day one. The employee in question may be comfortable with the risk, but what if the worst happens and he is ‘caught’ and prosecuted by the authorities. What will his employer do to support him and his spouse? Will they source and pay for a local lawyer to represent them? What about any criminal conduct clauses in his contract? Are they sufficiently well drafted to deal with behaviour that is lawful in one country but unlawful in another?

There are always issues associated with relocating any employee abroad, regardless of their sexuality or gender identity, but employers should be mindful that there may be additional considerations for LGBT+ employees. Other protected characteristics, such as sex and race, tend to be more visible: you simply may not be aware that the employee you offered the assignment to is LGBT+. It would be unfair to expect employees to have to raise the issue, particularly if they feel uncomfortable or do not wish to disclose their sexuality and/or gender identity to their colleagues. This is why it is better for employers to be proactive by developing comprehensive and transparent policies that are available to all employees, and communicating closely with each employee to understand and address their personal circumstances and concerns.

Conclusion

In the author’s experience, most employers mean well and would much prefer their LGBT+ employees to be happy and productive at work. However, employers cannot afford to trust to luck; they must provide information, resources and support to LGBT+ employees both ‘at home’ and on secondment. As the Report shows, a more inclusive workplace is a more successful workplace, so it is in everyone’s interests to get this right.