This is an area where progressive employers are reviewing existing arrangements to make the workplace more trans inclusive. There are large gaps in understanding gender identity, and a real need to be sensitive, respect privacy and appreciate the importance of language and terminology.
There are also specific legal protections which apply to trans employees in the workplace. While this might be a relatively small protected group within the workplace (with the best estimate that 1 per cent of the population may be trans), if a trans employee is harassed at work, the risks of getting this wrong are high and should prompt employers to plan ahead rather than allow inexperienced managers to make mistakes.
In a recent case, the tribunal ordered the employer to pay £180,000 in compensation to a successful claimant who was subjected to harassment and discrimination because of being gender-fluid. Some areas for employers to think about include following:
- Employers may wish to develop a bespoke policy to support trans employees in the workplace. This could include an explanation of the legal regime, the appropriate terminology to use in the workplace, what happens where employees transition at work, the procedures for changing relevant records, and dealing with absence and confidentiality.
- When supporting employees who are transitioning, any employer guidance should be flexible as each transition will be personal and unique to the individual concerned.
Updating existing policies
- Employers may want to start by updating equality monitoring forms and application forms to include additional questions beyond male/female.
- This may also be a good time to adopt a wider policy of gender-neutral language within the workplace.
- An employer’s equality and diversity policy is likely to set out the list of protected characteristics in the Equality Act. Employers may wish to extend protections under their policy to cover non-binary and gender-fluid employees.
- Employers may wish to explain in their absence management policy that absences because of gender reassignment will not be counted in the same way that other absences would be.
Recruitment process changes
- Employers should consider potential issues with the checks that are regularly undertaken as part of recruitment. Particularly when it comes to right to work checks, this can be difficult if the documentation that a trans employee has is for a gender which does not match their presenting gender.
- If the organisation carries out criminal records checks then there is a confidential checking service operated by DBS which can be used for trans applicants.
- All employees should receive regular training on equality, and this should include training on the current (and indeed evolving) protection in the area of gender identity and trans rights as well as covering the employer’s policy.
- Staff who are involved in recruitment should be trained on how to respond to employees who divulge their gender identity at an interview and the special legal protection that applies to those individuals who hold a Gender Recognition Certificate.
- Training staff on the importance of pronouns and explaining concepts like misgendering and deadnaming should also be on the agenda.
- Staff training should cover social media postings and the impact this can have on employment if an individual expresses views which amount to unlawful harassment.
Dealing effectively with complaints from trans employees
- Any allegations of discrimination or transphobic harassment must be taken seriously and addressed, and it is important managers involved understand the issues and the law.
Confidentiality and privacy
- There is no obligation on a trans employee to advise their employer of their gender history. However, where they do, the manager should ensure they discuss with the trans employee what information, if any, they want to share with colleagues.
- Care should be taken to ensure that a trans employee is not ‘outed’ at work, which could place the employer at risk of a discrimination or harassment claim.
- If the employee is in the process of transitioning, it is important to speak to the trans employee about how they wish to approach this with colleagues and then, if the trans employee is in agreement, speak to colleagues about the need to treat their colleague with dignity and respect.
- Confidentiality, privacy, and access to HR systems are all important considerations in this area, especially if a job applicant divulges during the interview process that they had a previous gender identity.
- Think about old HR records. If an employee has transitioned, an employer should ensure that the individual’s old records cannot be accessed.
- The most common issue which becomes contentious here is toilet facilities. Research conducted by Acas suggests organisations should consider installing individual cubicles catering for all staff regardless of gender identity or expression. Employers also need to consider the concerns of other colleagues.
Employers can take a variety of steps in this area to signal that they welcome trans employees and will support them during employment. From a legal perspective this will involve a mixture of policy changes, awareness training and sending the right signals about driving an inclusive culture.
Gillian MacLellan is an employment partner with CMS