As an employer you are probably well aware of your obligations when it comes to discrimination on grounds of age, disability or race, but do you know what your obligations are if an employee undergoes gender re-assignment?
What is gender reassignment?
Gender reassignment is defined under the Equality Act 2010 as: “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing the physiological or other attributes of sex”. This essentially means that where a person identifies with a gender which is different from that assigned to them at birth, they will attain protection under the Equality Act.
It is a common misconception that an individual must undergo medical intervention in order to qualify for protection. Whilst this may be have been the case some years ago, the current legal position is such that an individual can change gender without the need to undergo a medical intervention and it is the intention of the Equality Act to protect those “who make a commitment… to live permanently in their non-birth gender”. As such, a transgender person may undergo the process of aligning their life and physical identity to match their gender identity, which is referred to as transitioning. It is, therefore, important that you assess whether an employee would truly fall within the scope of the protections at an early stage to ensure you are offering support to your employees, as required and to ensure that as far as is possible, the employee is not subjected to any form of discrimination.
There are different types of discrimination and employers should be aware that both their own acts and the acts of other employees can amount to discrimination and therefore potential liability.
The main types of discrimination are:
- Direct discrimination – Where an employer treats an employee less favourably than others simply because of gender reassignment; This can also include discrimination which arises from the employee being wrongly perceived to be undergoing gender reassignment or where an employee is associated with an individual with this protected characteristic
- Indirect discrimination – Where an employer puts in place a particular provision, criterion or practice which would put transsexual employees at a disadvantage
- The act also covers harassment and victimisation of a person who is undergoing gender reassignment, which will also mean that the employer could be liable if another employee subjects an individual to such conduct
- Harassment – Where an employee is subjected to harassment related to gender reassignment, to harassment of a sexual nature, or to less favourable treatment because they reject or submit to harassment
- Victimisation – Where an employee is victimised because they have made or intend to make a discrimination complaint or because the employee has done things in connection with the Equality Act
Employers should also be aware that discrimination also applies to job applicants and it is particularly important that all individuals, regardless of whether they are employees or not, are treated fairly and equally.
A job applicant and/or an employee can make a claim in the tribunal if they believe they have been discriminated against due to gender reassignment.
Employers should be aware that they can be liable for discriminatory action taken by other employees or agents acting on behalf of the employer, whether or not it was done in the employer’s knowledge. It is, therefore, crucial that as an employer you take the steps detailed below to ensure they protect themselves against any claims.
- Discrimination tends to arise from a lack of awareness. You should ensure you have clear policies on discrimination, bullying and harassment. In addition, you should ensure that your employees are adequately trained with regard to equal opportunities and discrimination so that they are fully aware of what will amount to unlawful conduct
- Support employees who are undergoing gender transitions. Discuss with them if they want to tell their colleagues and how they want to approach it. Be flexible with them in terms of time off for medical appointments etc. Speak to the employee about changing their identity on records such as personnel files and company emails
- Ensure confidentiality is maintained and if the employee wishes to change their identity on company records, old records should be destroyed unless there is a legitimate reason for keeping them. Employers should not disclose details about an employee’s intended transition or history to anyone else without that person’s consent
- Obtain information from the employee including timelines and when they feel they will be ready to start being referred to as the opposite sex
Common Employment Concerns
The most common concern that arises for employers relating to gender reassignment is what to do when it comes to sharing facilities. Employers need to consider the needs of the individual and those of other employees. Employers should not require a transsexual employee to use separate facilities such as disabled toilets, save for where the employee agreed to this as a temporary measure (for example, during the transition process). Once the employee has confirmed their transition, they are entitled to use the facilities appropriate for the gender they present.
In addition, employers do need to be mindful of, and to challenge, any objections or inappropriate comments by work colleagues (or in some circumstances, service users) to a trans person using the facilities of their chosen gender and these should be met with communication, discussion and education before the situation gets out of hand.
Another common issue is bullying and/or harassment by co-workers and service users. Where an employer becomes aware of such issues, these should be dealt with promptly to ensure that your duty of care towards your employee is maintained.
If you are concerned about your obligations then you should seek legal advice to ensure that you are acting in accordance with the law.