In the third and final law-now in our series about supporting trans employees we discuss the practical steps employers can take to adapt their policies and processes and train staff. In our previous Law-Nows we explored the expanding legal protection towards non-binary and gender fluid employees (Trans employee rights in the workplace), the risks employers can face in failing to address this (Avoiding legal risks) and the importance of culture in creating a supportive workplace for trans employees.
Before we look at practical steps, we consider an important recent judicial development in this area. We have previously mentioned Forstater v CGD a key case in this area involving an employee who argued that her gender critical beliefs (namely that biological sex cannot be changed) was capable of legal protection under the Equality Act. We now have a decision from the EAT on this point and it held that the claimant’s belief is protected.
The case will now return to a tribunal to determine whether the claimant was discriminated against because of those beliefs. The judgment makes it very clear that this ruling does not mean that individuals can “misgender” trans individuals with impunity. This decision is perhaps not surprising, especially after the EHRC intervened in Forstater explaining in their submissions that even where a belief is deeply offensive to some people, it is still capable of protection.
This ruling affects how employers should deal with colleagues who do not believe that a person can change sex. This is a belief that is now recognised as being protected in law. That does not however mean that an individual is free to behave in a way that creates an offensive environment for others.
Employers who are dealing with “clash of rights” cases should always be aware of the need to balance competing rights. If an employee expresses their gender critical belief in a way that is offensive, it is important that the employer looks at the conduct and the manifestation of the belief (i.e. how they have expressed that belief) rather than the belief itself before taking action. If a gender critical employee expresses their opinion in a respectful manner, without misgendering someone, then taking disciplinary action against them will risk a successful discrimination claim. (By way of reminder, “misgendering” is where a trans employee is not addressed in their chosen gender identity.)
The difficulty for an employer is deciding where to draw the line between, on the one hand, the expression of a view which is unpalatable and indeed offensive to some but which is expressed in moderate and respectful terms, and on the other hand a situation which amounts to unlawful harassment.
Employers have already experienced similar challenges when religious views on homosexuality clash with the protected characteristic of sexual orientation. In that area, we have seen tribunal cases where boundaries on the conduct associated with aspects of legally protected views have been legitimately imposed by employers. For example, a counsellor was told that he could not avoid relationship counselling for same sex couples. Employees have been told by their employer not to proselytise about religion at work, when the conversation is clearly unwanted, particularly where they are sharing their beliefs with patients or service users.
Steps for employers to consider
This is an area where progressive employers are applying their minds to the subject and reviewing their existing arrangements to make the workplace more trans inclusive. Below are some areas to think about:
Employers may wish to consider developing a bespoke policy to support trans employees in the workplace. This may 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. It is important to remember that whatever is written down must be flexible as this is an evolving area, and the approach needs to be capable of being adapted to fit the needs of each trans individual.
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 involve giving the option of ‘prefer not to say/other’ or a multi-tiered approach may be preferable, to allow the individual to provide their own answer. This may include terms such as “other (please describe if you are happy to do so)”, “prefer to self-describe” or “use your own term”. Individuals should be told that all information provided in the form will be dealt with confidentially. Remember that there will be GDPR issues to consider if you are processing special category data concerning an employee’s gender history. For guidance on the type of questions you may want to ask, see the following - Getting_equalities_monitoring_right.
This may also be a good time to also adopt a wider policy of gender-neutral language within the workplace. This could cover application forms, job adverts and job descriptions.
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. Although the tribunal in Taylor v Jaguar Land Rover extended legal protection in that case, it is not binding in law as a first instance decision. It will require a decision in the Employment Appeal Tribunal before it is settled law. It is therefore an option for employers to consider as a matter of good practice and part of their general approach on diversity and inclusion, rather than a legal obligation.
- Employers may also 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. The Equality Act provides employees with protection for taking time off in connection with gender reassignment.
Recruitment process changes
Employers should consider potential issues with the checks that come with recruitment and onboarding. In particular 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. This is a matter that needs to be handled sensitively.
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. The sensitive applications route gives trans applicants the choice not to have any gender or name information disclosed on their DBS certificate, that could reveal their previous identity. DBS checks: guidance for employers
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.
Managers should receive bespoke training – we touch on some of the relevant areas below.
Staff training should also 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
In a recent survey by Totaljobs two thirds of trans employees said they hide who they are at work for fear of discrimination. In addition, a third experienced discrimination during the recruitment stage and a similar number experienced discrimination during employment.
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. As the Taylor case underlined, managers need to be trained and educated on the support required. In that case the tribunals acknowledged that the managers were quite simply out of their depth and needed specialist support from HR.
Confidentiality and privacy
- There is no obligation on a trans employee to advise their employer of their gender history. However, where they do, the appropriate manager should ensure that 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 discrimination or harassment. In addition, if they have a Gender Recognition Certificate (GRC) there are criminal penalties for doing so.
If the employee is in the process of transitioning then 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. An individual action plan should be drawn up and a single HR contact should be identified.
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. It is best practice for the trans applicant to have one single point of contact within HR who can deal with their documentation since previous history in terms of references may not tally. This will also help the individual to maintain privacy.
Think about old records. If an employee has transitioned, an employer should ensure that the individual’s old records cannot be accessed. An example in the government guidance of a trans man being outed was when his HR records showed a period of maternity leave eight years earlier. Action needs to be taken to prevent this type of issue arising.
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. The key is to ensure that the trans employee can use the toilet they feel best suits their gender identity. Transitioning employees should not be told to use the disabled toilets, unless they want to do this. Employers also need to consider the concerns of other colleagues and ensure that there is communication in advance with them, which is agreed with the trans employee as part of the action plan.
There is no one size fits all approach here. 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.
While we have focused on the legal risks in this series, the personal and emotional challenges faced by trans employees should be acknowledged. As the EAT explained in Forstater, whilst acknowledging that gender critical beliefs could be protected:
“…we do not in any way seek to ignore or downplay the difficulties faced by trans persons seeking merely to live their lives peacefully in the gender with which they identify, irrespective of their natal sex. The regrettable reality for many trans persons, however, is that something which most take for granted - the sense of self and autonomy in identity – is under constant challenge and attack.”
If you are interested in equality training or updating policies to adopt a trans inclusive approach, please get in touch with your normal CMS contact.