Nearly 20 years ago, the ECJ decision of P v S and Cornwall County Council marked the first landmark judgment to prevent discrimination based on gender reassignment in the course of employment for a trans individual. Since then UK legislation has evolved, enshrining in law long-overdue protections against discrimination for the LGBTQ+ community, both in the workplace and wider society. So what does Pride in the workplace look like?
Thanks to the Equality Act 2010, LGBTQ+ rights are protected in the workplace.
A closer look at the Equality Act 2010
Under the Equality Act, the following are protected characteristics:
- Gender Reassignment – an individual is protected if they are proposing to undergo, are undergoing, or have undergone (part of) a process for the purpose of reassigning their sex by changing physiological or other attributes of sex.
- Marriage and Civil Partnership.
- Sexual Orientation – this protects an individual’s sexual orientation towards (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of either sex.
These “protected characteristics” are safeguarded from various types of discrimination, for both employees and job applicants:
Direct discrimination
This gives protection where a person is treated, or would be treated, less favourably than others due to their protected characteristic. Apart from in marriage or civil partnership, the protection extends to associative and perceptive discrimination, i.e. where someone is treated less favourably than others due to their association with a person who has a protected characteristic, or where they are perceived to have a protected characteristic.
Discrimination based on gender reassignment has its own standalone provision in the Equality Act. This protects a trans-employee in relation to an absence at work due to gender reassignment if they are (unreasonably) treated less favourably than if their absence was due to another reason – for example, sickness or injury.
Indirect discrimination
This gives protection where an employer applies a provision, criterion or practice (i.e. a working practice, policy or rule) to everyone, but which disadvantages a group who share a protected characteristic.
An employer can only defend such a provision, criterion or practice if it is a proportionate means of achieving a legitimate aim (i.e. it can be reasonably justified).
An example of indirect discrimination would be where an employer implements a dress code whereby employees must wear tight-fitting clothing. This policy could indirectly discriminate against trans-employees who may disproportionately struggle wearing tight-fitting clothing, both mentally and physically, in aligning their appearance with their gender identity. A reasonable justification might be where such tight-fitting clothing was necessary for the safety of that employee or others.
Harassment
This gives protection from unwanted behaviour which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
If there is unwanted behaviour of a sexual nature or which is related to gender reassignment or sex, the Equality Act also protects individuals if they reject a submission and are treated less favourably.
Victimisation
A person is protected from suffering a detriment if they have raised a grievance or a claim, or they give evidence in proceedings alleging discrimination.
What does the future look like for Pride in the workplace
The Equality Act is nearly 15 years old and facing growing calls for meaningful review and reform. According to international NGO ILGA-Europe’s yearly analysis of LGBTQ+ rights across the continent (whereby they benchmark 49 European countries on their legal and policy situation for LGBTQ+ people), the UK now ranks 17th, despite having been placed first just nine years ago in 2015.
Another significant potential area for reform was highlighted in the 2020 Employment Tribunal case of Taylor v Jaguar Land Rover Ltd: the Equality Act does not refer to non-binary and genderfluid identities. In this case, the Employment Tribunal defined “gender reassignment” to be where an individual moves away from their birth sex and interpreted this as including genderfluidity. Whilst this was a positive result for the Claimant and for LGBTQ+ anti-discrimination rights, it is not a binding decision on other Tribunals. This case also highlights the range of rights and terms which are currently used, and the need to ensure these are adequately protected for there to be truly inclusive discrimination legislation which protects LGBTQ+ people, both in and outside of the workplace.
How Moore Barlow can help
If you would like to any further information on the contents of this post, or if you have an employment issue related to or arising from its contents, our Employment Team would be happy to help.
