The United Kingdom has a variety of laws which make it illegal to discriminate against people because of their gender or sex. One of the most important pieces of legislation is the Equality Act 2010. This act aims to protect people from any discrimination that they may face in relation to any of the nine key protected characteristics. These characteristics are age, disability, gender reassignment, marriage or civil partnership (within employment only), pregnancy and maternity, race, religion or belief system, sex and sexual orientation.
The following article will consider discrimination in the workplace based on sex and gender assignment, as set out by the Equality Act 2010.
There are four main types of discrimination which are covered in the workplace and which must be considered when discussing discrimination based on sex or gender reassignment. These can be categorised as direct discrimination, indirect discrimination, harassment and victimisation.
Direct discrimination is discrimination which is directed at an individual because of their sex or due to their gender reassignment. Examples of direct discrimination may include;
- choosing not to employ someone,
- dismissing them unfairly from their position,
- withholding or offering significantly worse contractual benefits,
- withhold a promotion.
In addition to ordinary forms of direct discrimination, it is also possible for direct “discrimination by association” to occur.
Discrimination by association occurs because of the people who are associated with the victim. For example, if a person was denied a job because their father had undergone gender reassignment, then that person would have been affected by discrimination by association. Lastly, people may suffer from direct discriminations based on perception. This occurs due to perceptions about someone’s sex or gender reassignment, regardless of whether those perceptions are correct. For example, a person may be prejudged based on the perceived gender of their name.
Indirect discrimination is discrimination which is caused by policies, procedures, rules and common practices within the workplace which inadvertently favour or disadvantage a particular group of people. This may include;
- contractual benefits,
- recruitment selection criteria,
- flexible working options,
- redundancy scoring criteria.
In order to bring a case of indirect discrimination, the claimant must be able to show that the policy would affect all members or the majority of members of their particular group. In some cases, employers may be able to justify these practices, if there is a legitimate business interest or aim to the disputed rules. For example, an employer may be justified in stipulating that the role is only for women, if it could be unsafe or unsuitable for a man to perform the task (e.g. support worker for vulnerable teenage girls).
Harassment involves unwanted conduct due to (actual or perceived) sex or gender reassignment. A person may also be treated less favourable because they rejected unwanted sexual conduct from another employee. Examples of harassment include;
- inappropriate questions,
- unwanted jokes,
- excluding someone.
Sexual harassment is also a risk within the workplace. Sexual harassment can include;
- comments about physical appearance,
- unwanted physical contact,
- displaying pornographic images,
- sexual assault.
Sexual harassment can be committed by a person of any sex or sexual orientation. In some cases, a victim of harassment may feel uncomfortable, even if there is no intent from the alleged harasser. In these cases, a tribunal may need to consider whether it is reasonable for the victim to feel the way that they do and whether it is possible for the accused person’s actions to be perceived as harassment.
It is also possible for a third party to make a complaint of harassment, even if conduct is not directed towards them. For example, a person may complain about co-workers making sexual comments towards another staff member, if they felt that this was having a negative impact on their working environment.
Victimisation is the disadvantage, harm or loss that a person suffers in the workplace due to their previous involvement in a discrimination case; including making an allegation of discrimination, giving evidence in a complaint, or supporting someone else’s discrimination case.
A person who is being victimised may be labelled as a troublemaker, denied opportunities, excluded from training and events, and they may be threatened with a poor reference when seeking other employment.