A recent report published by recruitment firm Totaljobs found that almost a third (32 per cent) of trans people have experienced discrimination or abuse at work in the last five years and more than two in five (43 per cent) have quit because their work environment was unwelcoming. The survey also found that 65 per cent of trans people did not reveal their gender identity at work, as compared with 52 per cent in 2016.
This blog looks at the legal position on trans and non-binary employees’ rights, including in light of the recent landmark case of Taylor v Jaguar Land Rover Ltd, and provides tips for employers on how to create an inclusive workplace for employees of all genders.
First, a note on language. Terminology in this area is rapidly changing, and although general definitions exist, some people may object to using those terms to describe themselves. Stonewall explains “while the term trans generally encompasses people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth, some non-binary people don’t see themselves as trans. It’s always important to respect the language someone uses to define themselves”.
The judicial Equal Treatment Bench Book (which aims to increase awareness and understanding of the different circumstances of people appearing in court), states that the term trans or transgender “can be used to encompass a wide range of gender identities and experiences which fall outside the traditional gender binary”. This may include people who identify with the opposite gender to the one they were assigned at birth, non-binary people, who identify as neither male nor female and may associate with elements of both or neither gender, and gender-fluid people who feel that they fluctuate between the genders. Other terms for people whose gender identity does not conform to that which they were assigned at birth include genderqueer and agender.
Not all employers will be familiar with the evolving terminology of gender identity, and that can lead to confusion or a lack of confidence about how to support trans or non-binary employees. Nevertheless, it is important for employers to educate themselves and ensure that managers and staff use respectful terminology, avoiding assumptions and clarifying which name and pronoun a trans or non-binary person uses. “Deadnaming” someone – calling them by their birth name – or “misgendering” them – using the incorrect pronoun – is not only disrespectful and potentially harmful, but where done deliberately or regularly could also amount to discrimination (discussed further below). For employers who are interested, Chapter 12 of the Equal Treatment Bench Book includes a helpful section on acceptable terminology (paras 64-74, from page 340).
Employees are protected from discrimination on the basis of “gender reassignment”, which is defined in section 7(1) of the Equality Act 2010: “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.
It is worth noting that in order to meet this definition:
- there is no requirement for any medical process or intervention; and
- a “physiological” attribute of sex may include reassignment surgery, but “other” attributes of sex will include non-physiological attributes such as clothes, chosen pronouns and hairstyle.
It has long been accepted that section 7(1) protects people who have transitioned or are in the process of doing so. However, the Employment Tribunal recently widened this protected characteristic to include non-binary and gender-fluid people in the landmark case of Taylor v Jaguar Land Rover Ltd.
In this case, the Tribunal noted that they “thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum”. Robin Moira White, who represented Ms Taylor, expressed the view that there “seems no reason that other complex gender identities that involve a move away from birth sex should not also be protected. Examples might be ‘gender queer’ individuals whose presentation combines elements that might be thought proper to either gender”.
Although this is a first instance decision, and so not binding on other courts, it is illustrative of how the courts are willing to respond to changing societal attitudes and extend the reach of the Equality Act to encompass this. It also shows how seriously the tribunal is prepared to respond to discrimination of this sort – the claimant in this case was awarded compensation of £180,000.
Five practical tips for employers
Failure to provide an inclusive workplace and protect employees from bullying and harassment may lead to discrimination claims. It may also lead to decreased morale and engagement and lower productivity among employees and, as demonstrated by the Totaljobs survey, loss of talent. As a matter of good practice, employers are advised to reflect regularly on their equal opportunities policies and practices to ensure they remain relevant and properly support and protect a diverse workforce.
Below are five tips for employers on supporting diversity and inclusion for employees of all genders:
Provide gender diversity and inclusion training to managers and employees. Importantly, ensure that HR understands the issues faced by employees with complex gender identities and can respond appropriately if approached by an employee within the workforce. In the Taylor case, the Tribunal criticised Jaguar Land Rover’s HR advice as “woeful”.
2. Support employees
- Acknowledge that each person’s experience will be different and consider each situation individually. Avoid making assumptions about individual employees and always discuss preferred terminology and pronouns with the employee in question. ACAS has produced an index of terms to assist employers and employees in understanding what different terms mean. If you accidently say the wrong thing, recognise your mistake and apologise.
- Implement a plan with the employee, with them taking the lead, to include, for example, who is told and under what circumstances and when and how records will be updated, including archived records to avoid outing an employee against their wishes. Ensure data is handled confidentially. With the employee’s consent, ensure changes to names, email addresses and staff photographs are made promptly.
- Consider the employee’s health and wellbeing needs and signpost any Employee Assistance Programme or wider occupational health services.
- Review your policies to check they include complex gender identities. Stonewall recommends implementing a Trans Inclusion policy and Transitioning at Work policy and ensuring that any leave policies include provision for transition-related absence.
- Ensure policies make clear that discrimination, bullying and harassment on any basis, including gender identity, will not be tolerated.
- Allow employees to dress in clothes that correspond with their gender identity where possible, and ensure any dress code policy reflects this. If an employee is required to wear a uniform, consider whether gender-neutral uniforms could be offered.
- If a trans employee is absent from work because they propose to undergo, are undergoing or have undergone gender reassignment, it is unlawful to treat them less favourably than they would be treated if they were absent due to illness or injury, or – if reasonable – than they would be treated for absence for other reasons.
- Ensure relevant policies are well-publicised – the judge in the Taylor case criticised the fact that although there was an Equal Opportunities and Dignity at Work Procedure, none of the managers or HR had actually seen them and there was no evidence that staff had been trained in or made aware of them.
Practical issues like toilet access will need to be considered. Acas guidance sets out that the employee should be free to choose the most suitable facilities for their gender identity, and that they should not be told to use disabled facilities unless as an interim measure.
Ensure that prompt and effective action is taken if allegations of bullying, harassment or discrimination arise or are raised as part of a grievance.
With special thanks to Annisa Khan, a paralegal in the Employment team, for helping to prepare this blog.
If you require further information about anything covered in this blog, please contact Tabitha Juster, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, April 2021