New guidance was recently published by the Government, in partnership with Inclusive Employers, on recruiting and retaining transgender staff. Whilst employers are becoming more aware of LGBT (Lesbian, gay, bisexual, transgender) issues in the workplace, there is still a lack of understanding of transgender issues in some quarters.
There are relatively few transgender employees, and employers often lack the confidence to treat them in an appropriate way – which can mean that valuable skills are lost to the business which could be retained if a more inclusive environment had been created. Often employees who decide to transition leave their jobs and may find themselves re-entering the workforce in a lower paid job.
The guide aims to help employers comply with the law but also to offer practical advice and suggestions for both employers and for transgender staff themselves.
Gender Reassignment Discrimination
Anyone who proposes to, starts or has completed the process of gender reassignment is protected from discrimination by the Equality Act. It is not necessary for the individual to be under medical supervision to be protected by the law neither is it necessary to hold a Gender Recognition Certificate. Change of gender for employment purposes starts when an individual begins living their new gender. No one should ever be referred to as belonging to neither one sex nor the other.
Discrimination can be one of four types:
Direct – less favourable treatment of someone because of their gender reassignment;
Indirect – when a rule or practice is applied to all staff but disadvantages someone who is undergoing gender reassignment;
Harassment – when unwanted conduct related to gender reassignment is causing distress or offence to a person;
Victimisation – treating an employee unfairly because they have made a complaint of gender reassignment discrimination.
Employers are automatically liable for any discriminatory acts of anyone acting on their behalf unless they can show that they had taken reasonable steps to prevent such actions.
Employers need to take positive action to prevent harassment of transgender staff by other staff, clients or members of the public. Employers should have well publicised polices in place and should ensure that managers are trained in the operation of such policies.
Awards for transgender discrimination can include an element of financial loss as well as an award for injury to feelings. There is no maximum on the amount that a Tribunal can award.
The Government guidance on recruitment and retention of transgender staff includes guidance on how to create a transgender-friendly workplace. It covers the advertising and recruitment process. There is a section on managing an employee’s transition which covers communication with staff, use of facilities and absences from work. There is also a template to use when formulating a plan with an employee who is transitioning.
Freeths are proud to have won an award for their approach to diversity in the workplace, being named ‘Best Firm 2015’ at the UK Diversity Legal Awards. This marked a longstanding commitment to diversity and inclusion, via a range of initiatives, including a diversity policy supported at board level, embedding equality policies across the organisation and delivering unconscious bias training to all staff.
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The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.