The modern employer must be committed to providing equal opportunities in the workplace and providing a supportive and inclusive working environment, irrespective of an employee’s race, age, disability, sex or gender identity.
Transgender employees have various rights in the workplace, as follows:
1. To be treated fairly when applying for a job: it is unlawful for an employer to treat a job applicant less favourably than others because they propose to undergo, are undergoing, or have undergone gender reassignment
2. To be treated fairly when they are absent from work because of gender reassignment: it is unlawful for an employer to treat an employee less favourably than others in relation to absences from work because of gender reassignment surgery
3. To not be discriminated against in how rules and policies are applied in the workplace: it is unlawful for an employer to implement a practice, criterion or provision (“PCP”) which places a transgender job applicant or employee at a disadvantage, without a proportionate and legitimate reason
4. To not be subjected to harassment: it is unlawful for employees to be subjected to harassment related to gender reassignment, harassment of a sexual nature, or to less favourable treatment because the transgender employee has rejected or submitted to harassment
5. To not be victimised in the workplace: it is unlawful for an employer to dismiss a transgender employee or subject them to a detriment because they have, or intend to, make a discrimination complaint (or if they have done other things in connection with the Equality Act 2010)
These rights flow from the Equality Act 2010. It is important to note that “gender reassignment” would cover situations where an employee proposes to undergo, is undergoing, or has undergone gender transition treatment; however, it would also cover a situation where a person did not intend to have, or ever have, surgery (i.e. gender reassignment need not be a medical process).
In order to provide equal opportunities and an inclusive working environment employers must endeavour to promote the following:
- Protection from discrimination, bullying, harassment and victimisation, as identified above
- The opportunity and means to complain to the employer if an employee is subjected to, or witnesses, discrimination because of gender reassignment
- A fair, inclusive and supportive recruitment policy and process – employers should try and use gender-neutral language when recruiting, avoid assumptions about gender or asking applicants about their gender, and ask candidates how they wish to be addressed. It also means that any gender reassignment information should be kept confidential and dealt with sensitively
- Monitoring of policies, procedures and patterns in the workplace to ensure that trans people are not being discriminated against
- That employees follow the employer’s dress code in a way that the employee considers matches their gender identity
- That employees are encouraged to use facilities which match their affirmed gender
- That reference requests are dealt with appropriately and sensitively
- That special data protection requirements apply (information relating to an individual’s gender history will constitute special category data)
- Training for employees, and the implementation of policies, which embed diversity and equality in organisations and, further, help to minimise the risk of discrimination
If an employer fails to ensure that they are complying with the above requirements then they could potentially face a successful discrimination case. For example:
- In Lawrence v Wills t/a Zeus Sauna/Zeus@71 ET/2604029/09 the Employment Tribunal held that the employer requiring the transgender employee (transitioning from male to female) to dress as a man and require her to be addressed as “Marc” rather than “Abigail” (her chosen name) amounted to harassment (unwanted conduct relating to her sex): the employee clearly wished to be known as Abigail and requiring her to be called Marc was harassment
- In Taylor v Jaguar Land Rover Ltd: 1304471/2018 the Employment Tribunal held that a trans employee had been subjected to gender reassignment discrimination (amongst other claims) when colleagues made comments such as “I was checking out your dress, saw it was you and my jaw dropped”, “So what’s going on? Are you going to have your bits chopped off?”, and “It’s nice to see you here in your attire. You have cracking legs”. The claimant was awarded over £180,000 in compensation
If you have been subjected to discrimination because of gender reassignment in the workplace then you may wish to consult an employment solicitor to discuss your rights.
About the author: Chris Hadrill is Partner in the employment team at Redmans and Settlement Agreement Lawyers.
