Gender Diversity and Inclusivity in the Workplace

Lucy Williams, an Employment Lawyer with Higgs LLP, discusses legal obligations towards employees when it comes to gender.

 

Ensuring gender diversity has become an increasingly important concern for employers in recent years, with a focus on achieving a balance within the workforce now not just a moral imperative but a business necessity. 

 

There has been much research into the real impact of gender diversity in the workplace, with statistics backing the theory that companies with a diverse workforce are more innovative, have better financial performance, and are more attractive to potential new recruits.

 

But what should you remain aware of when considering the gender mix in your business, and what legal obligation do you have to your existing employees?

 

Gender inclusivity means developing a workplace culture for employees of all genders – including transgender employees and non-binary employees - where everyone feels valued and respected.

 

Gender diversity can lead to better collaboration and teamwork, as well as increased morale, innovation and productivity, whilst also being highly desirable to potential business partners that want to engage with companies that share their values. 

 

Despite progress in recent years, gender diversity is still a huge challenge. Something that is emphasised by the UK’s gender pay gap, which currently stands at 15.4%. 

 

A lack of diversity not only limits opportunities for women but also for other underrepresented groups, such as the LGBTQ+ community. In fact, LGBTQ+ campaigner Stonewall reports that almost one in five LGBT people (18%) who were looking for work said they had been discriminated against because of their sexual orientation and/or gender identity while trying to get a job.

 

Significantly, in the UK, failure to consider inclusion and gender diversity in the workplace can also carry serious legal risks. 

 

Employees and job applicants are protected from direct or indirect discrimination, harassment, victimisation at work, or instructing, causing, inducing and helping discrimination under the Equality Act 2010 in connection with particular protected characteristics, which include sex and gender reassignment. 

 

Generally speaking, discrimination is treating somebody unfairly because of one of these characteristics or because they are associated with someone who possesses a particular characteristic.

 

Sex discrimination covers treating someone unfairly either because they are male or female. However, there is some debate about whom the protected characteristic of gender reassignment covers. The wording of the Act has been criticised for being unclear, given that terminology and our understanding of gender have evolved since the introduction of the Act in 2010.

 

For instance, it refers to someone with this protected characteristic as ‘transsexual’ and does not refer to individuals who identify as non-binary. However, the Equality and Human Rights Commission has made clear that an individual does not need to be medically transitioning or have a gender recognition certificate to be protected by the Act, stating: ‘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.’ 

 

Some non-binary or gender-fluid individuals may take steps that could fall under this. However, even if they do not change their appearance or physiology, case law has suggested that these individuals could still be protected if they are thought to be considering, going through, or having gone through gender reassignment. 

 

As successful discrimination claims are not capped in terms of the compensation which can be awarded by a tribunal, employers should put in place measures to try and avoid discrimination or harassment in the workplace.

 

 

EHRC Employment Statutory Code of Practice recommends having a clear equal opportunities policy in place to set minimum standards of behaviour and to take a proactive stance against discrimination. Whilst employers are not legally obliged to have one in place, any breach of the Code will be taken into account by a tribunal when deciding whether discrimination has taken place.

  

The existence of a policy is also important as the company can be held liable for the discriminatory acts of its employees. Under the Equality Act 2010, anything done by an employee in the course of employment is treated as having been done by the employer, regardless of if the employer had knowledge of the employee’s actions.

 

By having an equal opportunities policy in place, in the event of any breach by a worker, the company can establish a ‘reasonable steps’ defence if legal action is taken. In some circumstances, this can result in the company avoiding liability, which will land in the individual perpetrator’s lap instead.

 

 

Diversity and/or anti-bullying and harassment training should ensure that workers understand their obligations under workplace policies and the Equality Act 2010 – educating them on what behaviour is or isn’t acceptable in the workplace. 

 

 

The most common form of discrimination-based complaints revolves around inappropriate interactions between colleagues. The days of “banter” are gone, and jokes and nicknames often risk causing offence and, in turn, a claim against the company. Employees should be reminded that it is irrelevant whether they intend to cause offence; if the comment or action has the effect of doing so, harassment will have taken place.

 

All complaints should be taken seriously and investigated properly. If it is found that harassment has occurred, then formal disciplinary action should be taken against the perpetrator.  

 

 

Review all internal policies and procedures to ensure that they are not indirectly discriminatory. Indirect discrimination is where a policy, practice or rule applies to all workers in the same way but detriments a group of people with a shared protected characteristic.

 

For instance, requiring full-time working hours could indirectly discriminate against women who are likely to have childcaring responsibilities.

 

The wording of policies and procedures should also allow for and recognise gender and non-binary identity. For example, paternity, maternity, shared parental leave, and adoption leave policies should be explicitly inclusive of those who identify as a different gender, same-gender partners and non-binary people.

 

Consider implementing policies that cover support for those transitioning at work. Individuals have the right to take time off work for appointments related to transitioning. They are entitled to sick pay in the same way as anyone else undergoing a medical procedure and should not be penalised or treated unfairly for taking it. 

 

The normalisation of gender pronoun sharing is another common policy. Employers can prevent employees from being referred to by the incorrect pronouns by encouraging their staff to all actively share their pronouns in their email signatures or on their name badges. 

 

 

Consider distributing equal opportunity questionnaires to new and existing employees. These could help to highlight any workers who believe they are being disadvantaged in terms of their pay, promotions, and benefits because of their gender. All data should be collected anonymously in order to comply with GDPR obligations.

 

 

If you employ 250 or more employees, you must report gender pay gap data on male and female employees. The relevant legislation does not set out how to account for employees who identify as non-binary. However, government guidance on gender pay gap reporting says, “If an employee does not self-identify as either gender, you can exclude them from your calculations”.