10th May 2022

Gender reassignment – a change in the workplace already underway

It may be apparent to those who read our blogs regularly that some topics require a bit more investigation and thought than others. Some weeks are definitely in the “slow news” category so far as employment law is concerned and when that happens it is a case of trying to look at the wider landscape to prepare a blog which is (hopefully!) interesting and relevant.

However, in other weeks, an obvious topic of importance emerges. Thankfully for me, this was one of those weeks. Across the space of the last few days:

  1. I came across an article on the Scottish Government’s much debated Gender Recognition Reform Bill which, if passed into law, will streamline the process which an individual has to go through in order to be legally identified by their chosen gender. Currently, an individual requires to live as their chosen gender for 2 years and obtain a medical diagnosis of gender dysphoria for this to happen; the new legislation would allow individuals to “self-identify” and be able to obtain a gender recognition certificate after living permanently in their chosen identity after a reduced, 3-month period.
  • My wife (a secondary school teacher) mentioned to me that there are an increasing number of pupils in her school who are transgender and this is becoming an ever more prevalent occurrence. This has caused the school to have to take stock of how well equipped it (and its teachers) are to deal with the consequences of this, including how other pupils behave and respond to transgender individuals.
  • Then, finally, a client called to ask for some advice about any particular issues it needed to be aware of or arrangements to be made as they were in the process of recruiting the first two transgender employees they had ever employed.

Each of these 3 events is evidence of the fact that the issue of transgender rights is one which employers will need to be able to deal with in the coming years.

Gender reassignment is a protected characteristic under the terms of the Equality Act. This means it is unlawful to treat a job applicant, employee or worker less favourably than others because of gender reassignment. Transgender people also have the right not to be indirectly discriminated against; subjected to harassment; or be victimised.

In addition to the standard rights and protections the Act provides to someone with a particular protected characteristic, an employer will also be committing an act of direct gender reassignment discrimination if, in relation to a transsexual employee’s absence from work because of gender reassignment, it:

  • Treats the employee less favourably than it would have done had the employee been absent because of sickness or injury, or
  • Treats the employee less favourably than it would have done had the employee been absent for some other reason and it was not reasonable for it to do so.

A person’s absence is because of gender reassignment if it is because the person is proposing to undergo, is undergoing or has undergone the process (or part of the process) of gender reassignment by changing physiological or other attributes of sex. The Act does not set out any minimum or maximum period of time that would need to be allowed for the process or any part of it.

The protections that the law offers employees who are undergoing or have undergone gender reassignment are clear. As with all legal rights, employers’ main objective should be to avoid situations arising which will lead to litigation. As such, perhaps of greatest importance to employers is to ensure that they have a culture within the organisation which will be tolerant and welcoming of transgender employees.

The Government Equalities Office published “The recruitment and retention of transgender staff: Guidance for employers, in November 2015 and this includes invaluable guidance and tips for employers. The guidance makes clear that promoting equality of rights has the effect of “affording everyone dignity and of making people feel included so that each individual adds value and can fulfil their potential without fear of discrimination”. The guidance covers such matters as:

  • Ensuring the employer has someone in place who is trained to deal with specific issues
  • Setting up a system to ensure that the individual’s use of a different name to that displayed on their identification documents is not problematical
  • The approach to take as to whether and how the individual’s trans status is made known to other employees
  • How an employer should deal and engage with an employee who discloses they are planning to transition
  • What provision should be made in respect of a transgender individual’s access and use of facilities.

Communication with the employee is crucial and their confidentiality should be respected at all times. Their own views on matters should be central to the approach an employer takes in ensuring they feel valued and are in control of their situation (a one size fits all approach is unlikely to work).

Perhaps the greatest risk to employers will be how a transgender employee is treated by their colleagues. If one employee discriminates against or harasses another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place. The offending employee may also be liable on a personal basis. There are already reported cases of incidents where one employee refuses to recognise another’s chosen gender identity and that can open the door to claims of harassment being brought against the employer. The best way for employers to try and manage this risk is to:

  • have clear policies in place setting out the standards of behaviour expected of staff (whether a general Equal Opportunities policy or a more particular one setting out protections for transgender staff), including clear channels for an employee to complain about mis-treatment;
  • provide training to staff to promote awareness and ensure that the correct types of behaviour are displayed towards transgender colleagues; and
  • ensure a no tolerance approach is taken to any instances of harassment, with any inappropriate behaviour being addressed under the employer’s disciplinary procedures.

I opened by talking about the need to investigate and give greater thought to certain issues: this is true when it comes to an employers’ approach to managing and planning for gender reassignment and transgender issues in the workplace. Gender reassignment is by no means a new concept but is an area where an ever-increasing number of individuals will be within the scope of the protections offered by the Act. What should be obvious is that employers who do not ensure that their workplaces are equipped to deal with this change will find themselves at risk of employee complaints, grievances and tribunal claims.

If you have any employment law questions, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Stephen Connolly, Partner
Employment Law
Blackadders LLP
@EmpLawStephen

www.blackadders.co.uk

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