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ACAS supporting transgender employees in the workplace

View profile for Emma Corrie
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Employment law update 2018: employment tribunal

If you believe that you have been treated less favourably than another individual in the workplace  and you feel that the treatment is connected to one or more of the characteristics protected and defined in the Equality Act 2010, then you may be able to pursue a claim for unlawful discrimination.

The protected characteristics as defined by the Equality Act 2010 include:

  • Age
  • Gender
  • Race
  • Sexual orientation
  • Marriage and civil partnership
  • Pregnancy
  • Gender reassignment
  • Religious beliefs
  • Disability

It has become more apparent over the past few years that there has been a significant increase in the amount of discrimination reported in the workplace by people in the transgender community. ACAS has recently published a new research paper on supporting trans and intersex employees in the workplace. The paper covers legal and policy issues employers may have, as well as barriers, challenges and suggestions for change.

The report identified that employers and employees found the Equality Act 2010 to be the ‘bare minimum of protection’ and that the legislation did not provide sufficient advice or guidance for employers to help them identify what actions they should take and how to implement the provisions of the Act in the workplace. Most of the people interviewed for the purpose of the ACAS report confirmed that they believed that the Equality Act 2010 was not currently fully trans or intersex-inclusive and ‘good practice was thus roundly agreed to be action which goes above and beyond what is enshrined in law’.

The report identifies that ‘transphobia and prejudice can be a daily experience in UK workplaces and this can lead to direct discrimination, as well as indirect and unintentional discrimination’.

Under Section 19 of the Equality Act an individual with a protected characteristic is protected against indirect discrimination.

Indirect discrimination can occur when an employer applies a provision, criterion or practice (‘PCP) which puts an individual at a disadvantage when compared to others due to their protected characteristic. Therefore, employers are required to ensure that the policies they have and the ‘tone’ of the organisation, don’t segregate people of the trans community. The ACAS guidance has therefore been created to assist employers in ensuring that the workplace is a welcoming environment to all. It is clear from the report that all employment policies should consider the needs of trans employees and ensure that they ‘advocate for better inclusion’.

The report found that the biggest barrier for the trans community, was the lack of knowledge amongst employers, meaning that this is likely to lead to ‘a lack of management confidence in dealing with issues and persistent stigma’ in the workplace. It is clear that raising awareness and educating the workforce and management teams about the issues for the trans community in the workplace are important in working towards ensuring that this type of discrimination is eradicated.

The report highlighted key policy changes which all employers should consider, such as:

  • Providing individual toilet cubicles for all staff or allowing staff to use facilities to align best with their gender identity;
  • Reviewing dress codes or uniform policies at work for any potential negative implications for trans staff; having clear protocols for data management to avoid any non-consensual disclosure of previous identities

Please see ACAS guidance for further information and case study examples.

If you feel that you have been discriminated against as a result of your transgender status then you may be able to bring a claim for discrimination under the terms of the Equality Act 2010. Please contact our specialist discrimination team for further advice on 0175 321 6399.

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