Transgender Rights: Key Points for Employers in 2022

Recent social movements, such as LGBT+, BLM and Me Too, have led to a wider awareness of the prejudices and discrimination that certain groups face.

This heightened awareness of discrimination, and the laws that seek to protect against it, have resulted in individuals feeling more confident to recognise, and to assert themselves and take action arising out of events that take place in the workplace.

The bar has been raised and individuals are less likely to accept what may have previously been seen as “banter”, “just a bit of fun” or light hearted teasing.

In this culture of increased accountability, as an employer it can be difficult to know how to make sure that you are doing all you can to ensure that your workplace is free from discriminatory conduct.

Remember, you can be held to be liable for the acts of your employees too, particularly where you are unable to show that you did all you could to prevent discriminatory acts taking place at work in the first place.

We are also seeing a corresponding increase in enquiries about how to handle complaints, grievances and issues happening at work where they are linked to the Equality Act’s “protected characteristics”.

A 2021 report (based on a YouGov survey conducted on behalf of TotalJobs– one of the largest research samples of its kind to date in the UK)  revealed:

• that nearly half of the +400 transgender individuals surveyed had left a job because the work environment was unwelcoming;
• that 65% have had to hide their transgender status at work;
• that a third have experienced negative conduct at work, such as being deliberately called the wrong name or pronoun; and
• that more transgender people hide their identity at work now than they did five years ago.

How are transgender people protected under discrimination law?

Gender reassignment is one of the “protected characteristics” under the Equality Act (EA).

As well as protecting transgender people from discrimination themselves, the EA also extends to protecting individuals from discrimination because of their association with someone who is transgender.

So, a worker who can show they have been treated less favourably because, for example, a close family member is trans may bring a successful discrimination claim against their employer.

The protection goes even further - protecting workers who can show less favourable treatment for failing to follow a workplace instruction that is discriminatory, for example being instructed by a manager not to recruit someone who appears to be trans – even if that person is not actually trans and it is just a perception that they are.

It is therefore crucial that, as employers, you are taking all possible steps to make sure that your workplaces are free from all types of discrimination to create first and foremost that inclusive working environment but also to reduce your exposure to costly claims.

So, how can you do that with specific reference to transgender workers?

The following actions will help protect your organisation and affected employees: -

• take and communicate a zero-tolerance approach to transphobia in the workplace;
• review your application and recruitment processes to make them as inclusive as possible. De - gender the language on your application forms and recruitment documents so as not to discourage certain individuals from applying and promoting the inclusive culture of your organisation;
• make sure that all staff are given clear guidelines about what constitutes harassment so that they know how to avoid doing it and when to recognise it if it does happen – this can be achieved by providing trans inclusive diversity and inclusion training to all;
• give staff clear, safe and confidential means of reporting issues and the confidence that any disclosures will be taken seriously – be public allies instead of expecting this minority group to resolve issues themselves;
• implement policies to support you with the above, for example policies that cover transitioning at work;
• review existing polices (such as grievance or whistleblowing policies) to ensure that they include specific reference to gender reassignment; and
• make sure that managers are properly trained in how to deal with issues that come up of this nature – this is a crucial part of ensuring any trans members of staff have the confidence to know that their concerns will be handled properly and is also crucial to reducing your own liability, as an employer.

You can even go further and create networks of staff to show support for trans equality, demonstrating to trans staff that they are safe and able to be themselves at work.

Aside of the obvious benefits of encouraging a workplace that is inclusive and free from discrimination, if harassment does occur then, as an employer, you stand a better chance of successfully defending discrimination claims (including harassment and victimisation) if you are able to show that you have taken reasonable steps to prevent it.

 If you would like any further advice or support on this topic, or any other employment law issue, please contact the team on 01904 360295 or by emailing enquiries@bridgeehr.co.uk.