What do employers need to know?
Gender reassignment is one of the nine protected characteristics under the Equality Act 2010, making it unlawful to discriminate against such employees, as well as contract workers and partners.
Employers should consider managing not only direct discrimination but also whether their working practices put a transgender individual at a disadvantage indirectly. For example, do your business rules on the use of changing or bathroom facilities breach the rights of transgender employees?
Under the current legislation, businesses may discriminate based on gender reassignment if there is a ‘genuine occupational requirement’. For instance, a single sex service provider might restrict access to a transgender person based on their acquired gender. However, employers should ensure that all reasonable adjustments have been made to ensure employees are not disadvantaged.
What are the risks to your business?
Failure to protect individuals under the legislation could have harmful implications for employers. As well as damaging the working relationship with employees, businesses can face costly employment tribunals if their behaviour is deemed to be unreasonable. Managers, HR teams and colleagues involved in reported incidents of discrimination need to understand how to deal with such incidents to avoid claims and potential reputational damage to the business.
Employers should review current policies and practices to ensure that the working environment does not place transgender individuals at a disadvantage. In his summing up in the Primark case, Employment Judge Lewis made the following recommendations:
- Adopt a written policy on how to deal with new or existing staff who are transgender or who wish to undergo gender reassignment.
- Preserve confidentiality from the outset if that is desired, and agree a plan with the individual concerned.
- Cover access to and the confidentiality of sensitive data, such as entries on core allocation sheets, work badges and personnel documents such as probation forms.
- Insert into any written modules used for training managers to recruit staff a reference to the existence of a policy of confidentiality in regard to transgender new starters.
- Amend materials used for equality and diversity training of staff, management and HR so that they include references to transgender discrimination (along with the eight other protected characteristics), and a reference to the existence of the specific transgender policy.
- Ensure that transgender discrimination and harassment is referred to in all equality and harassment policies, along with the eight other protected characteristics under the Equality Act 2010.
- Add into the training materials for management on handling grievances, the importance of reinforcing the grievance policy and the importance of providing a grievance outcome within a reasonable time and right of appeal.
As the landscape of our workforce diversifies, legislative updates will change the way we treat protected groups, and the need to remain educated in these areas will grow. Businesses must remain fully committed to ensuring their workplace is inclusive with equal opportunities for all.
For further guidance and advice tailored to your situation, please reach out to the Buzzacott HR Consultancy team.