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Number of trans-related employment tribunals increases

Employment disputes relating to alleged discrimination against transgender employees have more than doubled in the past year.

Nine cases reached decision stage at employment tribunals in 2021-22 compared with four in the previous year, according to research by law firm GQ Littler.

Examples of alleged discrimination included colleagues deliberately using the wrong pronouns when addressing transgender colleagues, transphobic comments on social media and transgender employees being harassed for using toilets and changing rooms aligned with their gender.

The Equality Act 2010 makes it illegal to discriminate against an individuals based on a number of protected characteristics such as sexual orientation and sex.

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This includes those who have undergone or are undergoing gender reassignment yet there is debate whether it protects against people who identify as non-binary or gender fluid.

In 2022, a YouGov poll found half (49%) of the British public think discrimination against transgender people is either a major problem (16%) or a significant problem.

Joanne Lockwood, founder and CEO of SEE Change Happen, said the increase in cases was a result of employers still on the back foot when it comes to trans education.

She said: “Employers are not focusing attention on adequate training for leaders, managers and all staff in fact.

“People are inherently good, but employers need to recognise that not everyone has the skills and tools of awareness around trans identities. Mix that in with the current state of the world where there’s lots of gender critical beliefs that are loud and forceful, it’s not surprising we’re seeing an increase in cases.”

“Workers are genuinely confused and stuck and don’t know what to do. They feel attacked by gender critical person if I they say a certain statement, but if they don’t do anything, they worry they will upset a trans person.”

The number of cases voicing gender critical roles is also on the rise, with six tribunal cases from workers alleging they were discriminated against and or dismissed unfairly due to them voicing gender critical beliefs in 2021-22.

This is compared with just one from the previous year.

In June 2021, an Employment Appeal Tribunal ruled that gender critical beliefs can qualify for protection from discrimination under the Equality Act 2010.

Caroline Baker, partner at GQ Littler, said: “In cases where employees share beliefs that are at odds with one another, employers are advised to tread carefully. The focus should not be on the belief itself, but on the actions taken that stem from that particular belief.”

“If one employee discriminates against or harasses another on the basis of their beliefs, the employer could be held responsible unless they can show they have taken reasonable steps to prevent this harassment or discrimination from taking place.”

Lockwood argued that trans critical beliefs are more acceptable in society than other forms of prejudice.  

She added: “There’s still that permission to be critical of a trans person that you don’t get in other protected characteristics like racial or sexuality. And we haven’t matured enough in the workplace when it comes to trans employees.”

To prevent future disputes, Lockwood recommended HR introduce a zero tolerance approach, further education, coaching, mentoring, good safeguarding policies and mental health first aiders within every workplace.