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Equality Act 2010: Forms of Discrimination3rd June 2021 Employment
In order to make a genuine difference to the LGBTQ+ community during Pride month and beyond, it is important to first understand the legal protections that are rightly afforded to the LGBTQ+ community. This is the first, in a three part series, where we look at the legal protections available to LGBTQ+ people at work, recent Employment Tribunal decisions and practical tips for employers to consider implementing as part of their diversity and inclusion strategies, to ensure that companies can support the LGBTQ+ community beyond Pride Month. First, we discuss the law underpinning discrimination and harassment.
The Equality Act 2010
The Equality Act was introduced in 2010 to consolidate various pieces of discrimination legislation including the Disability Discrimination Act 1995, the Race Relations Act 1976 and the Employment Equality (Sexual Orientation) Regulations 2003.
The Equality Act itself protects people from discrimination in the workplace or in the provisions of goods and services based on nine protected characterises including sexual orientation and gender reassignment.
In comparison to claims such as unfair dismissal, there is relatively little qualifying criteria required for a person to submit a claim for discrimination.
For example, there are no length of service requirements and a claim may be submitted by an employee as well as a job applicant or a worker (such as an agency worker or seasonal staff).
The time limit to bring such a claim is within three months, or such further period that that is deemed to be just and equitable, from the act of discrimination (or the date of the last act if a series of acts).
Forms of Discrimination
There are various forms of discrimination that are prohibited against LGBTQ+ people under the Equality Act including the following:
- Direct discrimination – The less favourable treatment of a person because of a protected characteristic.
Example: Rejecting a candidate for a job following an interview solely because of their sexual orientation.
- Indirect discrimination – Where a business has a policy, practice or procedure which applies equally to everyone, but has the effect of placing people at a significant disadvantage people who share a specific protected characteristic.
If indirect discrimination occurs, a business may be able to evidence that it has an objective justification which is where the policy, practice or procedure is a propionate means of achieving a legitimate aim.
Example: A business may ask employees to show a childhood photograph of themselves as part of team bonding exercises. The impact of this exercise may be to cause serious distress to employees who have transitioned as their colleagues may not be aware of this.
- Victimisation – A person is subjected to a detriment as a direct result of doing a protected act, or the belief that they have done a protected act. A protected act could include making a complaint of discrimination in contravention of the Equality Act or giving evidence on behalf of a colleague relating to such breaches.
Example: An employee submits a grievance against her line manager that she has been overlooked her for a promotion because of her sexual orientation. The employer fails to investigate the grievance and instead the employee is dismissed.
- Harassment – The main form of harassment is where a person is subject to unwanted conduct related to a protected characteristic which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, offensive or otherwise offensive environment for that person.
An act of harassment does not need to be directed towards one person specifically as the test is whether the harassment is related to a protected characteristic.
Example: An employee’s manager shares a number of inappropriate “jokes” in a team meeting about bisexual people in the presence of an employee who is bisexual.
Discrimination by Association and Perception
Before the introduction of the Equality Act, a person could only be discriminated in law if they held one of the protected characteristics personally. However, the Equality Act introduced two new claims of direct discrimination on the grounds of association, and on the grounds of perception.
- Discrimination by association – A person is treated less favourably as a result of their association or link to a person with a protected characteristic.
Example: A manager treats an employee less favourably because she has a child who is gay.
- Discrimination by perception – A person is treated less favourably due to the mistaken belief that they have a specific protected characteristic.
Example: a cisgender woman is not offered a job following an interview purely because the hiring manager mistakenly believes that she is transgender.
However, it is important to note that discrimination by association and/or perception cannot apply in the case of marriage or civil partnership where it must be because of the victim’s status that amounts to discrimination.
As can be seen, the protections rightly afforded to the LGBTQ+ community are wide reaching, and can be complex to understand. Steps should be taken in earnest to ensure that the workforce understand the forms of discrimination and harassment, through insightful and regular training. Employers should be clear with their workforce about what amounts to acceptable and unacceptable behaviour, both through policies and meaningful communications. Not only does that encourage an inclusive and harmonious workforce, it allows employers to utilise the employers defence.