CIPD - Sex discrimination, sexual orientation, gender reassignment and employment

Diversity and equality

Revised April 2008

This factsheet gives introductory guidance. It:

provides an overview of the basic legal position
gives suggestions for good employment practices
includes the CIPD viewpoint.

The legal position

Sex, sexual orientation and gender reassignment are dealt with together in this factsheet for convenience. Historically, people who suffered discrimination on the grounds of their sexual orientation could not bring a discrimination claim at all, while others could only attempt to bring what was in fact a sexual orientation discrimination claim by using the existing sex discrimination legislation. That unsatisfactory legal position changed in 2003 and now entirely separate legislation governs these two types of discrimination. There are some similarities between the two, for example, the sub-division into types of discrimination as explained below.

References in this factsheet to claims of discrimination by, for example, a woman, should be taken to be equally applicable to a man or to a transsexual claiming discrimination in similar circumstances.

While this factsheet focuses on the way in which discrimination legislation affects individuals in the workplace, including employers, employees, workers and job applicants, some of the relevant legislation also applies in different contexts, for example in the provision of education.

The Equality and Human Rights Commission (see the Useful contacts section below) is the official body allocated to working to combat sex, sexual orientation and gender reassignment discrimination in addition to the other forms of discrimination, and to support individuals bringing claims.There are also several well-established charities working in this area.

Sex discrimination legislation

The principal legislation governing sex discrimination in the UK is the Sex Discrimination Act 1975 (SDA) which makes discrimination unlawful on the grounds of sex and marital status, and gender reassignment. The SDA stems from the Equal Treatment Directive (76/207/EC) which makes provisions for equality between men and women in terms of access to employment, vocational training, promotion and other terms and conditions of work. There is no qualifying period for employees: protection under the SDA begins from day one of employment.

The Equal Pay Act 1970 also regulates discrimination by implying an equality clause into the contract of employment, but equal pay matters are not covered in this factsheet.

Other relevant legislative provisions include:

The Sex Discrimination (Question and Replies) Order 1975 (SI 1975/2048)
Employment Rights Act 1996 (those provisions relating to maternity leave and dependant carer leave)
The Maternity and Parental Leave Regulations 1999 (SI 1999/3312)
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551)
The Sex Discrimination Act 1975 (Amendment Regulations) 2003 (SI 2003/1657)
The Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467)
The Occupational Pensions Schemes (Equal Treatment) (Amendment) Regulations 2005 (SI2005/1923)
Equality Act 2006.

The Equal Opportunities Commission, one of the predecessors of the Equality and Human Rights Commission, has published a Code of practice: sex discrimination¹. Whilst not a legally binding document, it gives guidance on best practice in the promotion of equality of opportunity in employment and failure to follow it may be taken into account by tribunal or courts.

CIPD members can find out more on the legal aspects of this topic from our Sex discrimination FAQ in the Employment Law at Work area of our website.

Go to our Sex discrimination FAQ

Sexual orientation discrimination legislation

The principal legislation governing sexual orientation discrimination in the UK is:

The Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)- these apply across England, Scotland and Wales.
The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (SR 2003/497) - these apply across Northern Ireland.
The Employment Equality (Sexual Orientation) (Amendment) Regulations 2003 (SI 2003/2827)
The Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263) - covering matters outside the sphere of pure employment law.

The 2003 Regulations were introduced to implement the sexual orientation aspects of EC General Framework Directive (2000/78). They make discrimination on the grounds of sexual orientation unlawful.

Sexual orientation is defined as having a sexual attraction to:

persons of the same sex (lesbians and gay men)
persons of the opposite sex (heterosexual)
persons of both sexes (bisexual).

Sexual orientation has nothing to do with sexual practices, for example sadomasochism or paedophilia, which are not covered by these Regulations.

Sex discrimination and sexual orientation are completely separate. Since the The Employment Equality (Sexual Orientation) Regulations 2003, it is no longer necessary for gay or lesbian employees to try and establish that sexual orientation discrimination falls within the scope of the SDA; it does not.

CIPD members can find out more on the legal aspects of this topic from our Sexual orientation discrimination FAQ in the Employment Law at Work area of our website.

Go to our Sexual orientation discrimination FAQ

Gender reassignment legislation

After numerous high profile cases, the SDA was amended by the Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102 to make it entirely clear that transsexual men and women are expressly included in the SDA where they suffer discrimination because they have undergone, or are about to undergo gender reassignment.

Gender reassignment is defined for the purposes of the SDA as a 'process which is taken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process'. The provisions cover employment-related and some vocational training matters.

The Press for Change Employment Working Group has produced a Code of Practice² as part of the work of the UK Parliamentary Forum on Transsexualism. It covers various employment matters, particularly recruitment and medical treatment during employment.

Outside the employment context, from 4 April 2005, the Gender Recognition Act 2004 has ensured that transsexual people who have successfully registered with the gender recognition panel will be recognised, can marry, and be given a new birth certificate all using their acquired gender.

Types of discrimination

The principles of discrimination are virtually the same for sex discrimination and sexual orientation discrimination. There are four types: direct, indirect, victimisation and harassment. Our factsheet on workplace bullying and harassment has more information on this aspect. CIPD members can find out more on each of these types of discrimination from our Discrimination FAQ in the Employment Law at Work area of our website.

Genuine Occupational Requirement

Where there is a Genuine Occupational Requirement (GOR) to employ a person of a particular sex, certain very limited exceptions from the regulations are permitted covering selection, promotion and training, but the employer must be able to show that there is a genuine need taking account of the type of work, or the context in which the work is carried out. For example, certain hospital or prison work providing special care for one sex is subject to a ‘reasonableness’ test.

This exception does not apply to discrimination on marital grounds (except in the case of where a job is held by a married couple), but only to sex discrimination and gender reassignment.

Pregnancy and maternity-related issues

Any unfavourable treatment of a women of any grounds related to pregnancy, childbirth or maternity leave is unlawful and is likely to constitute sex discrimination and may also give rise to a constructive unfair dismissal claim. CIPD members can find out more about this, and the legal aspects of maternity leave generally, from our Maternity paternity and adoption leave and pay FAQ.

Go to our Maternity paternity and adoption leave and pay FAQ

Good employment practices

Employers should screen policies and working practices to remove unfair discrimination and bias: this is key to effecting the creation of open workplace cultures where to be different is not a problem but an asset. Addressing issues related to gender and sexualtiy as part of a coherent diversity strategy is essential.

To change attitudes organisations should be encouraging good employment practices through managing equality issues, communication and training, and addressing specific areas.

Managing equality issues

Promote a culture of respect and dignity of all employees through effective implementation of policies and procedures. Be aware of competing and conflicting rights to balance the needs of the individual and the business.
Foster respect to realise different perspectives matter, and that diversity is everyone’s responsibility.
Make the business case for diversity – view this as an opportunity, not a threat.
Assign responsibility for driving diversity issues, perhaps to a head of diversity or a champion at board level and allocate appropriate resources.
Think inclusively when devising policies and procedures to offer different things to suit differing needs.
Continually monitor and evaluate policies and practices to ensure that they are working and bias free using cross-sections of the organisation. Complacency can undermine effectiveness.

Communication and training

Communicate to raise awareness regarding behaviours expected of employees, particularly line managers. Instigate training and follow-up workshops and campaigns in the workplace eg so that all are aware of differing religious practices. This may be through published policy statements but needs to gain engagement with employees – it is not sufficient to simply send an email saying that a policy is available.
Undertaking an equality audit gives the profile of the current workforce – but there needs to be careful communication about what is being asked, why and how it will be used for employees to feel confident in giving information.
Be seen to act on harassment and bullying issues.
Consider introducing a support network or other body to and encourage networking.
Make equality policies and statements readily available.

Addressing specific areas

Ensure a fair and consistent recruitment process. Take care in drafting and placing advertisements to avoid discrimination and stereotyping through language and images. Indicate if any genuine occupational requirements apply.
Operate transparent and consistent appraisal and performance management processes. Have clear career paths including promotion and training opportunities for all employees.
Revise policies and procedures, if appropriate, to ensure fairness and compliance with the law eg flexible working practices, dress code/uniforms. Review terms and conditions if necessary.
Treat personal information sensitively and confidentially, and reassure how this information will be used.

On specific issues, our many factsheets will provide further guidance.

Go to a list of our factsheets

CIPD viewpoint

Sex discrimination has been outlawed for more than thirty years, but revisions to existing law and new provisions strengthen the legal framework increasing the obligations on employers. But employers shouldn’t be relying on legal requirements alone. Effective organisations will have diverse workforces and embrace good employment practices regardless of sex, sexual orientation or gender reassignment. Different views, perspectives and ideas are vital.

Employers must make sure that prejudice and stereotyping on the basis of gender and sexuality doesn’t result in unfair decisions about jobs and training. Failure could lead to legal costs, lost productivity and damaged reputation when the law is broken, but also to lost opportunities to gain business advantage. Increasing evidence points to the importance of managing diversity to beat market competition in the delivery of value to a diverse customer base.

CIPD believes that managing diversity successfully is key to good people management. Hard facts show that people can make the difference between good and poor business performance. But everyone is different and unless employers take diversity seriously they will fail to recruit, retain and engage the commitment of the talent needed to sustain and improve business performance. Our anaul recruitment surveys show an increase in the development of innovative recruitment and retention strategies and working practices to attract a more diverse workforce. Employers who sit on the sidelines regarding diversity will quickly become less attractive to existing and prospective employees.

See our latest recruitment survey

Useful contacts

References

EQUAL OPPORTUNITIES COMMISSION. (2003) Code of practice: sex discrimination. Manchester: EOC.
Available at: http://www.eoc.org.uk/Default.aspx?page=15640&lang=en
PRESS FOR CHANGE EMPLOYMENT WORKING GROUP. (1998) Transsexual people in the workplace: a code of practice regarding discrimination on the grounds of transsexualism. London: Press for Change.
Available at: http://www.pfc.org.uk/employ/empguide.htm

Sex discrimination, sexual orientation, gender reassignment and employment