Discrimination (Sexual orientation/gender reassignment)

Since 1 December 2003 it has been unlawful to discriminate on grounds sexual orientation and gender reassgniment in employment and vocational training. The Equality Act 2010 encompasses both direct and indirect discrimination as well as prohibiting victimisation and harassment.

The regulations cover similar areas as the Sex Discrimination Act and make it unlawful to treat an employee less favourably in terms of employment, terms and conditions of employment, promotion and training opportunities because of his or her sexuality. The regulations also afford employees with express legal protection from harassment or bullying resulting from their sexual orientation or gender reassignment and from harassment or less favourable treatment resulting from an incorrect perception of their sexual orientation or gender reassignment. This places a responsibility on employers to ensure that employees are aware that harassment or bullying (be this intentional or unintentional) is unacceptable. This extends to the telling of homophobic jokes and employees actions both within and outside the workplace, such as at social gatherings.

Care is needed to ensure that gay or lesbian employees are not inadvertently discriminated against in such areas as benefits and time off to deal with family emergencies. For example:

  • It is unlawful not to offer private medical benefits to an employees same-sex partner if such benefits are made available to unmarried opposite-sex partners (however, if such benefits are only available to a spouse in a married relationship they need not be offered to unmarried heterosexual or unmarried same-sex partners);
  • Adoption Leave is available to an individual who adopts a child and two weeks 'paternity' leave is available to his or her partner, whether same sex or opposite sex partner;
  • Time off to deal with emergencies. For example to be with a seriously ill same-sex partner.

Respecting an individual's right to confidentiality

Matters of sexual orientation and gender reassigment are sensitive and may be regarded as such under Data Protection legislation. Organisations should therefore take care that information that may be taken to infer details of an employee's sexual orientation or gender reassigment is held securely and in confidence. An example of this could be an individual's same-sex partner given as an emergency contact on the employee's personnel records.

Exceptions

Discrimination on the grounds of sexual orientation or gender re-assignment may be lawful in certain cases. Examples of these could be:

  • Where there is a genuine 'occupational' qualification, for example an organisation involved with counselling those undergoing gender reassignment, gay men or lesbians may be able to demonstrate that employing people of a particular sexual orientation or gender self-identification may be preferable as it may be of direct relevance to their job responsibilities. However, no specific examples of Genuine Occupational Qualifications are given as guidelines by the government and extreme care needs to be taken when considering whether a Genuine Occupational Qualification exists;
  • Teachers in a religious school.