Commonly asked questions on the legal issues relating to sexual orientation discrimination in the workplace
Sexual orientation discrimination and gender reassignment discrimination are both illegal in the UK. They are listed as protected characteristics in the Equality Act 2010. They arise when someone is unfairly disadvantaged for reasons related to their sexual orientation or because they are transsexual – their gender identity differs from that which was assigned at birth.
This factsheet offers an overview of the different types of discrimination with examples of how they apply to sexual orientation and gender reassignment. It highlights the need for employers to take action and suggests good employment practices to ensure everyone has fair access and opportunity to progress in work, regardless of sexual orientation, gender identity or gender expression.
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What is sexual orientation and gender identity?
Sexual orientation is defined by Stonewall as ‘a person’s emotional, romantic and/or sexual attraction to another person'.
Discrimination arises when someone is treated less favourably because of their sexual orientation, including orientation to:
- persons of the same sex (lesbian, gay)
- persons of the opposite sex (straight)
- an emotional and/ or sexual orientation towards more than one gender (bi).
It includes how an individual chooses to express their sexual orientation, such as appearance. But sexual orientation and discrimination protection has nothing to do with someone’s sexual practices, for example sadomasochism.
Gender identity is defined by Stonewall as a person’s innate sense of their own gender, whether male, female or something else, which may or may not correspond to the sex assigned at birth.
This factsheet also covers trans issues. Gender reassignment discrimination is when someone is treated less favourably because of being trans. This area of discrimination covers people whose gender identity differs from the gender assigned at birth. Stonewall explains: ‘To undergo gender reassignment can include undergoing some sort of medical intervention, but it can also mean changing names, pronouns, dressing differently and living in their self-identified gender’.
The law protects trans men and women. There does not need to be any medical process so, for example, a trans man who was assigned female identity at birth but has a male gender identity and lives as a man would be protected. The Equality and Human Rights Commission say: ‘You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it’.
The terms ‘gender reassignment’ and ‘transsexual’ as originally used in the Equality Act have been criticised for being unclear who’s covered by the Act and who isn’t. Terminology evolves and ‘transsexual’ is just one term under the broader umbrella of ‘trans’ which describes people whose gender is different from the sex they were allocated at birth.
Current definitions mean the law does not easily protect those people who identify as non-binary - ‘someone who does not subscribe to the customary binary approach to gender, and who may regard themselves as neither male nor female, or both male and female, or take another approach to gender entirely’ (Government Equalities Office). Acas say that ‘someone with a non-binary identity could be protected if they are discriminated against because they are thought to be considering, thought to be going through, or thought to have gone through gender reassignment from man to woman or woman to man, regardless of whether this perception is correct or not’. The category ‘perceptive discrimination’ (see below) may cover gaps in the legislation.
The need to take action on LGBT+ inclusion at work
Many lesbian, gay, bi and trans people do not feel able to be ‘out’ at work. Findings from a government-backed survey show a widespread negative attitude towards LGBT individuals at work. More than one in five respondents had experienced a negative or mixed reaction from others because of being LGBT, and over three-quarters who had experienced a ‘serious’ workplace incident related to their sexuality said they didn't report it because they thought nothing would happen or change. Recent TUC research also shows that nearly seven in ten LGBT workers have been sexually harassed or assaulted at work. Many have not told their employer, in some cases due to fear of being outed at work. Listen to our LGBT+ at work podcast.
The legal position
In Great Britain, discrimination on the grounds of sexual orientation or gender reassignment is contained within the Equality Act 2010.
The Equality and Human Rights Commission has published a range of guidance on all aspects of the Equality Act, including a Code of practice on employment. Whilst not legally binding documents, the codes give important guidance on good practice and failure to follow them may be taken into account by tribunals or courts. CIPD members can find out more in our Sexual orientation discrimination law Q&As.
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.
Types of discrimination
Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics which include sexual orientation and gender reassignment.
This applies to all protected characteristics. It’s treating someone less favourably than another person because of a protected characteristic that they have. For example, it’s promoting a heterosexual man rather than a gay man because of their sexual orientation.
Indirect discrimination occurs when:
- a provision, criterion or practice is applied to all, and:
- it puts a group with a protected characteristic at a disadvantage when compared with another group
- an individual is put at a disadvantage
- the employer cannot show it to be a proportionate means of achieving a legitimate aim.
For example, if a criterion is put in place that unsociable shifts must be undertaken by those without child-caring responsibilities. As it is currently statistically less likely for same-sex couples to have children or young families, they may be more likely to be given the unsociable shifts. Whilst the policy appears to treat all employees equally, in practice it places LGBT staff at a particular disadvantage and amounts to indirect discrimination. The employer may attempt to justify the discrimination by showing that it is a proportionate means of achieving a legitimate aim.
This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone less favourably because their daughter is a lesbian or because their son has undergone gender reassignment.
This is treating someone less favourably because it’s perceived that they have a protected characteristic, whether they do or not. For example, treating someone less favourably because it’s perceived that they're gay when they're not.
Victimisation occurs when someone is treated less favourably because they have made or supported a complaint, or raised a grievance under the Equality Act 2010. It also applies if it’s thought that they have made a complaint. A comparator isn’t required for a claim of victimisation. Post-employment victimisation can occur - for example, refusing to give a reference to someone who had made a complaint under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.
Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
There’s no longer any specific legislation making employers liable for harassment that comes from a third party (for example, a customer). However an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment.
Find out more in our factsheet on workplace bullying and harassment.
Where there is an Occupational Requirement to employ a person with a particular protected characteristic, certain very limited exceptions from the law are permitted covering selection, promotion and training. The employer must be able to show that there is a genuine need, taking account of the type of work.
Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See the guidance from Citizen’s Advice.
Good employment practices
As part of coherent diversity, inclusion and employee engagement strategies, employers should undertake thorough reviews or equality analyses of policies and working practices to remove unfair discrimination and bias. HR have a key role in creating fair and inclusive workplace cultures where to be different is not a problem but an asset. However, there’s still a significant way to go until we can claim this is the case with LGBT+ inclusion.
Although there’s no legal requirement to have a written diversity and inclusion policy, it’s a good idea to produce one to demonstrate the organisation takes its legal and moral obligations towards being a diverse and inclusive employer seriously. It can also encourage employees to treat others equally.
Actions should focus on:
Promoting a culture of respect and dignity for all employees through effective implementation of well-designed policies and procedures, which are regularly reviewed and support both individual and business needs.
Ensuring a belief in having a diverse and inclusive workplace is part of the organisation’s desired identity, not a ‘nice to have’. This will involve communicating the ethical and business case arguments for a continuous focus on LGBT+ inclusion, and that creating an inclusive workplace is everyone’s responsibility.
Assigning senior level responsibilities for driving diversity issues, including a senior level sponsor for LGBT+ inclusion, and allocating appropriate resources to drive change.
Acting proactively and fairly in response to all complaints.
Communication and training
Communicate a firm commitment to LGBT+ inclusion and ensure equality and diversity policies and statements are easily accessible to all.
Make it clear the organisation has a zero tolerance approach to bullying, harassment and discrimination. Provide examples of the standards of behaviour required of everyone, what bullying, harassment and discrimination with respect to sexual orientation and gender identity looks like, and the consequences of breaking the behaviour codes. Ensure line mangers understand their role in addressing all complaints and make sure all employees understand their personal responsibility to treat colleagues with respect. Use a variety of communication methods and channels to do this.
Ensure all staff are aware of how to report instances of bullying, harassment or discrimination on the basis of sexual orientation or gender identity, and feel able to do so.
Work with employee networks to understand LGBT+-specific issues in the organisation, how staff can be better supported, and work collaboratively in communicating the importance of diversity and inclusion to the rest of the organisation.
Work closely with managers to ensure they implement people management practices fairly and understand how to support trans staff.
Reviewing employment practices
Ensure recruitment and selection processes are fair and not open to discrimination on the basis of sexual orientation or gender identity. For example, 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.
Incorporate a diversity statement in every job advert. Have links to your organisation’s diversity and inclusion webpage where people can find out more about the organisation’s commitment to diversity and inclusion and information about employee resource groups, such as an LGBT+ network.
Operate transparent and consistent appraisal and performance management processes and check that career paths and promotion and training opportunities are inclusive for all employees.
Review policies and procedures, and terms and conditions of employment to ensure fairness and legal compliance. Involve your LGBT+ network in reviewing policies if you have one.
Ensure the wording of policies and procedures is gender neutral. For example, paternity, maternity, shared parental leave and adoption leave policies should be explicitly inclusive of same gender partners and non-binary people.
Have a Transitioning at Work policy which sets out how the organisation will support staff during their transition to the gender they identify as. Stonewall provides comprehensive guidance for employers on trans inclusion at work.
Useful contacts and further reading
Books and reports
ACAS (2016) Sexual orientation discrimination: key points for the workplace. London: Acas.
GIBSON, S. and FERNANDEZ, J. (2018) Gender diversity and non-binary inclusion in the workplace: the essential guide for employers. London: Jessica Kingsley Publishers.
GOVERNMENT EQUALITIES OFFICE. (2015) Recruiting and retaining transgender staff: a guide for employers. London: GEO.
HOEL, H., LEWIS, D. and EINARSDOTTIR, A. (2014) The ups and downs of LGBs’ workplace experiences: discrimination, bullying and harassment of lesbian, gay and bisexual employees in Britain. Manchester: Manchester Business School.
RUBENSTEIN, M. (2019) Discrimination: a guide to the relevant case law. 32nd ed. London: Michael Rubenstein Publishing.
STONEWALL. (2017) A vision for change: Acceptance without exception for trans people 2017-2022.
LANDY, M.C. (2017) How to tackle transgender discrimination at work. People Management (online). 6 November.
NEWBERRY, C. (2017) Five strategies for better LGBT workplace inclusion. People Management (online). 27 March.
WEBSTER, J.R. et al. (2017) Workplace contextual supports for LGBT employees: a review, meta-analysis, and agenda for future research. Human Resource Management. Vol 57, No 1. pp193-210. Reviewed in In a Nutshell, issue 76.
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and Claire McCartney.
Claire McCartney: Senior Policy Adviser, Resourcing and Inclusion
Claire is the Resourcing and Inclusion Policy Adviser at the CIPD. For the last two years she has been running her own research and consultancy organisation.
Claire specialises in the areas of diversity & inclusion, flexible working, resourcing and talent management. She has also conducted research into meaning and trust at work, age diversity, workplace carers and enterprise and has worked on a number of international projects. She is the author of several reports and articles and regularly presents at seminars and conferences.
Prior to her roles at the CIPD, Claire was Principal Researcher at Roffey Park where she conducted research projects into a variety of topics including Roffey Park’s annual Management Agenda survey, work-life balance, flexible working, employee volunteering, talent management, and diversity. Claire has also worked with a range of clients on tailored research needs.
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