Equality Act: clarification and employer top tips

by | Feb 6, 2021 | Blog

Tribunal rules a gender fluid employee has protection under the Equality Act

A gender-fluid employee at Jaguar Land Rover (JLR) engineer who faced insults and jokes from their colleagues won a claim for harassment, discrimination and constructive unfair dismissal.   The employer’s argument was that the individual did not fall within the definition of gender reassignment under section 7 of the Equality Act because they were gender fluid/non-binary, but the tribunal found this argument to be “totally without merit” when they found in the employee’s favour that the protected characteristic of gender reassignment was applicable.

The December 2020 Tribunal decision confirmed that protections under the Equality Act for those undergoing gender reassignment also extended to non-binary and gender-fluid individuals.  This clears up the debate on whether non-binary people were protected by anti-discrimination legislation.

What does this mean for employers?  It goes without saying that all individuals should be treated equally in the workplace and inclusion should be high on the agenda.   As well as considering physical adjustments including gender-neutral toilet facilities and uniforms, here are our thoughts on building an inclusive and diverse workforce.

Written policy

Although there’s no legal requirement to have a written diversity policy, it’s a good idea to have one to demonstrate you are taking your legal and moral obligations seriously.  In addition, a policy will set out how you are actively creating inclusive behaviours – creating an environment where people are accepted as individuals.


Start early with the on boarding process.   Diversity is not simply about asking new starters to read and sign the diversity policy, you should think about creating training and other initiatives involving existing employees that show how the policies are being actioned.

Some organisations have diversity and inclusion objectives in job descriptions and appraisals.

Training and workplace behaviour

It is vital to train all employees to understand and engage with inclusion in how they do their jobs and work with colleagues.  Build diversity and inclusion concepts and practices into staff training courses, management training and teambuilding programmes to increase awareness of the need to handle different views, perceptions and ideas in positive ways.

Make sure you give guidance on what desirable behaviours are so you can gain positive commitment.  Introduce mechanisms to deal with all forms of harassment, bullying and intimidating behaviour, making clear that such behaviour will not be tolerated and setting out the consequences of failing to operate in line with your values.

Leading from the top

Your leadership team is key to forming the culture of the business!    Diversity and inclusion should be embedded in line managers’ roles.

Leaders are also the first line in policing your diversity and inclusion policy. There must be a zero tolerance approach to any kind of discrimination, in order to set a wider example. Managers should also be talking with their team members regularly to find out if they do feel included in what the team is doing and addressing quickly any feelings of exclusion.


Develop an open culture with good communication channels.   Actively seek people’s ideas and take action on feedback.

Measure, review and reinforce

You should ensure you regularly audit, review and evaluate progress, using data, reviewing where barriers may exist and also show the impact of initiatives, making appropriate changes to activities if needed.  A simple start would be to carry out an employee survey to evaluate initiatives, to find out if policies are working for everyone, to enquire about team culture and the perception of equality of opportunity.  The results from such surveys may then provide a platform for improvement.

To take this one step further, you could consider benchmarking progress against other organisations.  Use connections to explore what others are doing and adapt ideas for your own business where appropriate.