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

Diversity and equality

Revised October 2009

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. Entirely separate legislation governs sexual orientation discrimination and sex 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 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.

A major development which has been expected in the area of discrimination law for some time is the Equality Bill which is currently progressing through Parliament. The Bill is expected to receive Royal Assent in Spring 2010 and be implemented from Autumn 2010. If enacted, it will replace numerous pieces of discrimination legislation.

At present, sex discrimination and sexual orientation are dealt with under completely separate pieces of legislation. However, if the Equality Bill becomes law, these forms of discrimination will be two of what are known as ‘protected characteristics’. The other protected characteristics include, for example, gender reassignment, marriage/civil partnership, and pregnancy and maternity.

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. Some of the provisions of 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. See out factsheet on equal pay for more infroamtion on that topic.

Go to our equal pay factsheet

The Equal Opportunities Commission, one of the predecessors of the Equality and Human Rights Commission, published a Code of practice: sex discrimination¹. Whilst not a legally binding document, it gives guidance on good 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 was introduced in 2003 to implement the sexual orientation aspects of EC General Framework Directive (2000/78). The regulations 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.

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 the last of these. 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 does apply to sex, sexual orientation and gender reassignment discrimination in a very limited way.

Pregnancy and maternity-related issues

Any unfavourable treatment of a woman of any grounds related to pregnancy, childbirth or maternity leave is unlawful and is likely to constitute sex discrimination. It 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 sexuality as part of a coherent diversity strategy is essential.

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

Managing equality issues

Create a culture of respect and dignity of all employees through effective implementation of well designed policies and procedures which support both individual and business needs.
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 senior level responsibilities for driving diversity issues and allocate appropriate resources to drive change.
Think inclusively when designing diversity policies and procedures to ensure they are transparent, fair and address different needs.
Continually check that policies and practices are bias free and fair\and working across the organisation. Failure to carry out policy and practice reviews can undermine their effectiveness..

Communication and training

Make it clear what standards of behaviour are required of everyone, what kinds of behaviour will not be tolerated and the consequences of breaking the behaviour codes. Ensure line mangers understand their particular roles in addressing all incidents of harassment and bullying and making sure all employees understand their personal responsibility to treat colleagues with respect. Use a variety of communication methods and channels to do this.
Seek to monitor the diversity of the workforce by asking employees for relevant personal information, guaranteeing confidentiality and that it will not be used to disadvantage people unfairly.
Be seen to act proactively and fairly on all incidents of harassment and bullying.
Consider employees networking and support groups as a way of making sure employees understand diversity issues and take them seriously in ways that focus on business needs.
Make equality and diversity policies and statements easily accessible to all.

Addressing specific areas

Ensure recruitment and selection processes are fair and diversity friendly. Take care in drafting advertisements to avoid discrimination and stereotyping through language and images and aim to attract candidates from diverse sources. 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 and terms and conditions of employment to ensure fairness and legal compliance. For example, reward and recognition policies, flexible working practices, dress code and the design of corporate uniforms.

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

Go to a list of our factsheets

CIPD viewpoint

Sex discrimination has been illegal for more than thirty years and the Equality Bill currently going through Parliament will streamline provisions. But employers shouldn’t rest with compliance to progress equality and diversity: rather they should follow evolving good practice in diversity management. Tackling unfairness based on sex, sexual orientation or gender reassignment in ways that are both morally right and deliver benefits by increasing the diversity of views, ideas and perspectives can add value to business performance.

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 to do so could lead not only to legal costs but also lost productivity and damaged employer brand and reputation, as well as lost opportunities to gain business advantage. Increasing evidence points to the importance of managing diversity to gain a competitive edge in challenging markets.

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. Research into recruitment and talent management show how diversity is being addressed to increase effectiveness. Employers who sit on the sidelines regarding diversity will quickly become less attractive to the diverse labour market for talent and skills, and they will lose out to competitors.

See our survey The war on talent

Useful contacts

References

EQUAL OPPORTUNITIES COMMISSION. (2003) Code of practice: sex discrimination. Manchester: EOC.
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