The Chartered Institute of Personal and Development guide published in September 2023 quotes its own research that 55% of transgender (or trans) workers have experienced conflict in the workplace, including harassment or discrimination in their career with 18% stating that they feel “unsafe in the workplace.”
In the recent case of AB v Royal Borough of Kingston Upon Thames an employer was ordered to pay £25,000 in compensation to an employee who had transitioned in respect of discriminatory conduct, including “deadnaming”. The judgment serves as a reminder to employers of the crucial role that a strong equality, diversity and inclusion programme plays in an organisation in order to remain effective in protecting all members of the workforce. It also serves as a reminder to HR that their role is important and ongoing, that policies, processes and training must be regularly updated and relevant.
Before we consider the tribunal’s findings in that case, we outline the current legal protection for trans individuals in the workplace.
Gender reassignment protection: the Equality Act 2010
“Gender reassignment” is a protected characteristic covered by the Equality Act 2010 (EqA 2010) and is where a 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”. Employees and job applicants are protected from experiencing:
- direct discrimination: less favourable treatment because of gender reassignment and where there is not an occupational requirement
- indirect discrimination: where the employer has a provision, criterion or practice that disadvantages the employee and is not objectively justified
- harassment: unwanted conduct related to gender reassignment that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment:
- victimisation: subjecting the employee to a detriment because they have made or are suspected of making or intending to take action which is protected under the EqA 2010, such as bringing proceedings, giving evidence or making allegations.
- absence-related discrimination: this is a further form of discrimination relating to the protected characteristic of gender reassignment which protects the employee from less favourable treatment relating to absences from work because of gender reassignment.
Notwithstanding the EqA 2010’s use of the terms “gender reassignment” and “transexual” (being a person who has the protected characteristic of gender reassignment), these terms have since been found to be outdated with the umbrella term “trans” being preferable. Guidance from the CIPD refers to trans as being an overarching term referring to those whose gender is not the same as or does not sit comfortably with, the sex they were assigned at birth. The Equality and Human Rights Commission (EHRC) has commented that language of “sex” and “gender reassignment” is outdated and unclear, given conflicts with biological definitions of sex, but notes that there is no straightforward solution.
What is clear is that gender reassignment is a broad concept and, more importantly, does not require any medical transitioning or interventions. The protection applies from the point that the employee proposes to change their gender identity. It is broad enough to protect individuals whose gender identity is non-binary. The Government Equalities Office (GEO) describes transitioning as the “process of aligning their life and physical identity to match their gender identity”.
AB v Royal Borough of Kingston Upon Thames: “HR failures on a wider scale”
AB, as she is referred to in the anonymised judgment, worked in the transport department of the Royal Borough of Kingston Upon Thames and transitioned with effect from 1 July 2020. The Claimant’s claims involved:
- No policies, process or training
Although she informed her employer 8 months prior to transitioning, she claimed that no support was given to her and no risk assessment was conducted in relation to her transition. Her employer had a process for risk assessments relating to stress, for health and safety purposes, but even then no stress risk assessment was ever conducted for AB despite an assessment by occupational health which noted AB’s stress as a result of the treatment she had been subjected to.
The tribunal was critical of the employer’s 2006 Dignity at Work policy in place when AB transitioned which incorrectly categorised harassment relating to gender reassignment as a form of sexual harassment, which was not in line with the Equality Act 2010. Although there can be sexual harassment of a person with the protected characteristic of gender reassignment, this was not the issue here. The employer accepted that there was no equality training in place to assist managers in supporting transitioning employees nor an appropriate policy or procedure for these circumstances.
The tribunal was critical of these apparent failings, noting that the employer had a 60 strong HR team. However, AB had categorised her claims as direct discrimination rather than indirect discrimination or harassment, and the tribunal did not find that these failings amounted to less favourable treatment of AB or that it was because of AB’s protected characteristic of gender reassignment. Had AB framed her claims as unlawful harassment it is arguable that the employer would not have satisfied the statutory defence that it took reasonable steps to prevent the conduct in question due to what the tribunal described as “HR failures on a wider scale”.
- Removal from work/projects and reaction to her concerns
AB raised concerns that she was being singled out, writing an email to her line managers that, “I feel since my transition, I have been singled out on a witch hunt.” The response that AB received was “extreme” and the tribunal held that one of her managers took this to be “personal criticism,” and asked her to apologise for making the unofficial complaint. In a later phone call she was told to either “substantiate her grievances or to apologise” and no steps were taken to investigate the allegation. One of AB’s managers wrote to her stating that she must apologise in writing and that this was a written management instruction which if she failed to carry out he would commence formal action under the disciplinary process. The tribunal found this to be more than an employer acting unreasonably but evidence of a dismissive attitude to AB’s allegations that was, in part, due to AB’s protected characteristic. As noted above, AB framed her claims as direct discrimination although it is arguable that a claim for victimisation may have been appropriate in the circumstances.
Deadnaming occurs when someone’s birth name is used to refer to them after they have changed their name and gender. It took the employer 2 years from the date of AB’s transition to change her name from her given name to the one she used following her transition on her email, door pass and CRM system. On AB’s locker, in full view of other employees, a post-it note was stuck to it with her deadname crossed out and her name written next to it. When she tried to obtain a vehicle pass she was questioned on her transition by third party agents who used the wrong pronouns when addressing her, otherwise known as misgendering. There was no formal apology for the deadnaming that took place, or an explanation as to why it took so long.
The tribunal awarded AB compensation for injury to feelings of £21,000 with additional interest. There was no additional compensation claimed for financial losses arising from the discrimination but such awards are uncapped and could prove costly to employers particularly where loss of earnings is involved.
What can employers learn from AB v Royal Borough of Kingston Upon Thames?
This case shows the importance of getting the basics right and the important role of HR in ensuring both equality and inclusion for trans employees and job applicants.
Practical tips for employers
- Policies: Carry out yearly reviews of internal policies to ensure they remain current and compatible with changes in case law, legislation and guidance. Consult with trade unions or internal staff groups as may be appropriate. Bring the policy to the attention of any third parties that an employer is likely to interact with (e.g. suppliers or clients) to make it clear that any harassment on the basis of gender assignment will not be tolerated.
- Training: Provide regular training to employees at all levels in the business. This can help to inform employees of the correct approach and the appropriate inclusive language to use when discussing trans issues, further improving the quality of communication and encouraging useful dialog. Ensure that there is appropriate training for those with management responsibility to be able to identify issues in the workplace and deal with them promptly, sensitively and in accordance with internal processes. This training should occur regularly and should not be seen as a one off.
- Gender and Name changes: Ensure that where personal data is stored these data storing systems are prepared to deal with gender change. Upon transitioning it is not for an employee to ensure that the employer has taken this step. Carry out system checks and checks on personal data. Employers will need to ensure that they do not inadvertently “out” a trans employee because of out-of-date data. This may involve a wide range of locations including: name badges, business cards, security passes, online and internal profiles, awards, uniform, payroll data, photos, DBS checks, emails addresses/sign off, pension and benefits records, subscriptions, professional memberships, voicemail, union membership, recruitment documents.
- Culture: Create a culture of inclusion, not just equality. Consider setting up staff representative groups such as an LGBTQ+ group. Ensure that there is a zero-tolerance attitude towards abuse and harassment, which may involve investigating allegations even where no formal complaint has been made.
- Flexibility and consultation: There is no single roadmap to transition, and the process may effect employees differently. Discuss how the transitioning employee would like to manage their transition in terms of the workplace. By way of example, in relation to external providers of benefits or pension, does the employee wish new accounts to be opened in their new name or for existing accounts to be amended? Does the employee give the employer consent to liaise with external providers or others in confidence? Are there any other reasonable or practical steps to help the transitioning employee? How does the employee wish their transition to be addressed with their colleagues, if at all?
- Manage conflicts: Employees holding gender-critical beliefs may also be protected under the EqA 2010 if it is a philosophical belief capable of protection. Employers may have to manage conflicting beliefs in the workplace. Where there may be protection for such employees holding such beliefs, this does not extend to the manifestation of those beliefs where that manifestation involves behaviour impacting others. This may be addressed through training and clear policies on expected standards of behaviour.
The tribunal noted that the employer in this case now has a specific trans equality policy which it developed in 2022 in consultation with AB and reviewed in the following year in consultation with its LGBTQ+ staff network.
Should conflict arise, legal advice should be taken at the earliest opportunity to avoid escalation.
Should you require advice in relation steps your company can take to mitigate employment law risks, or any of the matters raised in this blog, please contact Clare Gilroy-Scott, Charlotte Gittins or any other member of the Employment team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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