Supporting transgender and non-binary people in the workplace

The CIPD has issued new guidance to help employers support transgender and non-binary people at work. It covers employers' legal obligations as well as advice on understanding and tackling the challenges that transgender and non-binary people face throughout the employee lifecycle - from recruitment to progression.

Find the guidance here.

Positive action vs positive discrimination

An inquiry into claims of discrimination against white males in the RAF has highlighted the line that organisations must walk when trying to foster diversity and inclusion. In trying to boost the number of female and ethnic minority pilots in the force, the RAF was found to have moved from permissible “positive action” to prohibited “positive discrimination”.

Employers can use positive action to support people with a shared protected characteristic (e.g. a disability) to overcome certain obstacles. However, employers must not use measures that unfairly disadvantage other groups. Doing so could amount to positive discrimination, which is unlawful.

For instance, promoting job opportunities in publications aimed at certain demographics would typically be seen as positive action. But hiring someone with a protected characteristic over a better qualified candidate without that characteristic would usually be considered positive discrimination.

However, there are exceptions. Proportionate action can be taken if the people who share the protected characteristic:

• experience disadvantages linked to that characteristic;
• have unique needs differing from the majority; or
• are underrepresented in a particular field or activity.

It can be tricky to get the balance right. The government has issued guidance for employers looking to implement positive action, which you can find here. For tailored advice, speak to an expert.