A shocking new report canvassing views from 1,000 employers shows the extent to which transphobia is rife in the workplace. Almost half were unsure whether they would hire a trans person at all. Respondents to the questionnaire appear blissfully unaware that declining to recruit a person who is trans is direct gender assignment discrimination in breach of the Equality Act 2010.
We’ve seen some recent cases around this. Primark was found liable in an employment tribunal (ET) for disability harassment. De Souza was harassed and mocked about having a man’s voice and told she smelled like a men’s urinal. The ET found the harassment was severe and that it had driven her from her job. She was awarded just shy of £50,000.
Last month the press reported on an ongoing tribunal case of a transgender woman who was ridiculed as a 'geezer' and a 'bloke' over a three-year period. It is alleged that even company management participated in the bullying and found it humorous when the employee complained.
Clearly this conduct cannot be tolerated. It is unacceptable to subject anyone to a hostile environment where their dignity is destroyed, but it is also unlawful discrimination giving employees actionable claims under the Equality Act.
What does the Equality Act say about protections for trans employees and workers?
Gender reassignment is one of nine protected characteristics. If a person is treated differently because they are trans there is legal risk. A one-off act is protected against and so too is any policy that is prejudicial. Employers can be liable for direct discrimination, indirect discrimination, harassment and victimisation.
To be protected against trans discrimination (the wording of the Act is gender reassignment but this is now viewed as an outdated and misleading description, as is the word transsexual), a person will identify as a gender different to their birth gender. You do not need to have undergone specific treatment or surgery and can be at any stage of transition, from proposing to reassign to having completed it. The Equality Act also covers perception discrimination and associative discrimination. If you are perceived to be gender-variant you are covered. So too if your close connection with a trans person is a reason for discrimination; the protection is broad.
Intersex people are not explicitly protected by the Equality Act but there could be a gender reassignment perception claim or sex or even disability discrimination.
When am I protected? Who is liable?
The protection runs throughout the employment relationship from recruitment to dismissal. It is incumbent on every employer to provide a safe working environment free from harassment and discrimination. The employer organisation is liable for discrimination but so too are individuals. You can be personally sued for discrimination and for aiding and inducing it. For example if you have been told not to recruit any trans people you are personally liable. If put in this position, HR should push back and remind the company that it is unlawful to have a non-recruitment of trans people policy.
What can employers do?
So how can employers ensure that trans employees are treated fairly and with dignity and respect? It goes to the obvious things: training individuals and making it clear to all staff that there is zero tolerance for any kind of discrimination. Employees who cannot work out for themselves that this kind of behaviour is unacceptable must be reminded that it is not, and also be warned that to do so is a disciplinary issue that could give rise to dismissal. Unless employers take action to stamp out unacceptable conduct they are going to find that they have a legal liability and are also taking a risk with the reputation of their company. Customers will vote with their feet and refuse to give business to organisations that tolerate and endorse unlawful discrimination.
I am being treated unfairly for being trans. What should I do?
If you are an employee who is being subjected to unfair treatment, take legal advice early. Keep a note of the comments that are made about you so you are evidence-gathering for a potential case. Consider raising a grievance but ensure you won't be further ill-treated because you have raised an issue. Above all do not tolerate this behaviour so that together we can eliminate it.
Stonewall has urged employers to demonstrate a zero-tolerance policy on transphobic bullying and harassment, but this has not fully translated to improvements in the workplace for many trans employees.
Karen Jackson is director of didlaw, a boutique law firm specialising in discrimination