In Great Britain, discrimination on the grounds of sexual orientation or gender reassignment is contained within the Equality Act 2010. Many different issues arise according to the precise facts and type of discrimination involved; due to the similarities in the legal concepts involved in sexual orientation discrimination and gender reassignment discrimination. Both ‘protected characteristics’ are addressed in this factsheet.
The Equality and Human Rights Commission (EHRC) has published guidance on sexual orientation discrimination and the Equality Act including a Code of practice on employment. The code gives important guidance on good practice and failure to follow it may be taken into account by tribunals or courts. CIPD members can find out more in our Sexual orientation discrimination law Q&As.
Sexual orientation discrimination
From the legal viewpoint of the Equality Act 2010, there are only three sexual orientations:
- 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).
Gender reassignment discrimination
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 is 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.
For example, the Act doesn’t mention 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). Case law has confirmed that people who identify as non-binary or gender fluid are still protected by the Act. Acas confirm 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…, regardless of whether this perception is correct or not’. The category ‘perceptive discrimination’ (see below) and case law interpretation should cover gaps in the legislation.
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.
Direct discrimination
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
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.
Associative discrimination
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 is trans.
Perceptive discrimination
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
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
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.
Occupational Requirement
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.
Positive action
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 very carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See guidance from the EHRC.
