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 specific examples about 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.
An individual’s sexual orientation and gender identity should not affect whether they get a job, benefit from training or get promoted and discrimination on the basis of these characteristics should not be tolerated. Everyone deserves the opportunity to develop their skills and talents to their full potential, work in a safe and inclusive environment, be fairly rewarded for their work, and have a voice in their organisation.
It’s in the best interests of any organisation to understand and respond positively to LGBT+ issues. Being a genuinely inclusive employer will benefit an organisation’s reputation and brand, and their ability to recruit great people. In addition to the cost to individuals of facing prejudice or bias and missing out on job opportunities, employers who take no action to promote diversity and create an inclusive workplace will quickly become less attractive in the labour market and will lose out to competitors.
HR needs to set behavioural expectations through policies, including communicating a zero tolerance approach to both sexual orientation and gender reassignment discrimination. However, policies alone won’t bring about change; policies need to be brought alive by the behaviour of everyone in the organisation and HR need to ensure workplace cultures are an inclusive and safe space for everyone.
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 gender reassignment – when a person’s 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’.
Gender reassignment discrimination is when someone is treated less favourably because of being transsexual.
The law protects individuals who’ve undergone, or propose to undergo the personal, social, and sometimes medical process of gender reassignment. There does not need to be any medical process so, for example, a transgender man who was assigned female 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 (a person who does not identify as only male or only female, or who may identify as both). However, 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 gay, lesbian and trans people do not feel able to be ‘out’ at work. A poll by the RBS-sponsored British LGBT Awards found three-quarters of lesbian and bi-sexual women were not out to all colleagues and external contacts, half were not out beyond their closest colleagues, and two in three had experienced a negative experience at work.
There’s still a long way to go before our workplaces are truly inclusive. Research has found that:
- One in five lesbian, gay and bisexual employees have experienced verbal bullying from colleagues, customers or service users because of their sexual orientation in the last five years.
- Nearly half of trans people are not living permanently in their preferred gender role were prevented from doing so because they feared it might threaten their employment status. At work over 10% of trans people experienced verbal abuse and 6% were physically assaulted. As a consequence of harassment and bullying, a quarter of trans people will feel obliged to change their jobs.
- adversely affect employment opportunities
- result in failure to recognise skills-based abilities, potential and experience
- result in significant legal costs, compensation and settlements paid to avoid defending expensive discrimination claims.
The legal position
In Great Britain, discrimination on the grounds of sexual orientation or gender reassignment is now 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 open 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.
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.<.p>
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. (2017) Discrimination: a guide to the relevant case law. 30th ed. London: Michael Rubenstein Publishing.
STONEWALL. (2017) A vision for change: Acceptance without exception for trans people 2017-2022.
Focus on gender identity. (2016) IDS Employment Law Brief HR. No 1047, June. pp10-19.
LANDY, M.C. (2017) How to tackle transgender discrimination at work. PM Daily. 6 November.
LOCH, P. (2014) Legal opinion: Sexual orientation issues with a global workforce. Employer’s Law. June. p11.
NEWBERRY, C. (2017) Five strategies for better LGBT workplace inclusion. PM Daily, 27 March.
'Out' at work. (2011) IDS Employment Law Brief. No 929, July, pp13-19.
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Dr Jill Miller: Diversity and Inclusion Adviser
Jill joined the CIPD in 2008. Her role is a combination of rigorous research and active engagement with policy makers, academics and practitioners to inform projects and shape thinking.
She frequently presents on key people management issues, leads discussions and workshops, and is invited to write for trade press as well as offer comment to national journalists, on radio and TV. She specialises in diversity and inclusion, employee well-being, people management in SMEs and future HR trends.
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Stonewall Global Diversity Champion
The CIPD is a member of Stonewall’s Global Diversity Champions programme, working together to ensure that we are an LGBT+ inclusive employer and membership organisation across our UK and International communities. Our principles – work matters, people matter and professionalism matters – enshrine our belief that good work is safe and inclusive.
Stonewall and the CIPD share the vision that by embedding inclusive values, organisations can drive higher levels of wellbeing, motivation, satisfaction and productivity. Our ambition is to ensure that all of our staff and volunteers feel confident and comfortable in bringing their whole selves to work - because people perform better when they can be themselves.