By Ozlem Kulle
If an employee decides to undergo gender reassignment, what is the legal position and how should employers manage things?
Gender reassignment is, generally speaking, quite unfamiliar territory for most employers and is a very sensitive and difficult situation to manage — both for employers and the individual concerned.
Protection from discrimination, harassment and victimisation because of gender reassignment
The protection afforded to individuals on this ground under the old discrimination law (the Sex Discrimination Act 1975) is preserved under the Equality Act 2010, most of which came into force on 1 October 2010.
It is unlawful for an employer to subject an individual to direct or indirect discrimination, harassment or victimisation because of gender reassignment. This protection not only exists in relation to individuals who propose to undergo, have undergone or are undergoing gender reassignment, but also to those who associate with such people (are related to them, for example) and those who are mistakenly perceived to be such individuals.
The Company can also be held vicariously liable for unlawful discrimination, harassment or victimisation committed by members of staff in the course of their employment (with or without the company’s knowledge or approval), unless it can show that it had taken such steps as were reasonably practicable to stop the offending employee(s) from committing such acts. Such individuals can also be personally liable for their actions
The definition of gender reassignment has been widened by the Equality Act 2010. Previously, gender reassignment under the old law was defined as “a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex…”. There is no longer a requirement for a person to be under medical supervision in order to be protected.
Top tips on managing the process
• Ensure that your organisation has an Equal Opportunities Policy in place which refers to discrimination on grounds of gender reassignment, as well as gender generally and the other “protected characteristics”.
• When first approached by an individual in the circumstances you describe, you should reassure them that the Company will be as supportive to them as possible and will work through the process with them to ensure as smooth a transition in the workplace as possible.
• Appoint and confirm to the employee concerned, someone who will be the main point of contact for that person in the Company to manage the transition from the company’s perspective. That person should have a detailed first meeting with the individual to agree the process for handling the transition. Points discussed could include: whether the employee is to stay in their current post or be redeployed following the transition; the expected timescale of any medical procedures; the expected point or phase of change of name, personal details and social gender; whether the employee wishes to inform their line manager, colleagues and clients themselves, or would prefer this to be done for them; and whether training or briefing of colleagues will be necessary. The plan of action should be recorded in the employee’s personnel file and kept strictly confidential.
• Discuss how much time the individual will need to undergo gender reassignment treatment. When the individual is absent for treatment or surgery, the company’s normal sick pay arrangements should apply. Remember that it would constitute unlawful discrimination if an individual undergoing gender reassignment is treated less favourably than someone who is absent for some other medical reason.
• All personnel records should be updated for the transition. It is advisable that companies create new records rather than amend old ones, to ensure confidentiality.
• Agree with the employee the point at which the use of facilities such as changing rooms and toilets should change from one sex to another.
• It is good practice for employers to take responsibility for informing whoever needs to know about the gender reassignment, unless the individual going through the process would prefer to do this. The company should not inform colleagues, clients and the public that an employee is intending to undergo, or is undergoing, gender reassignment, without the individuals’ explicit consent.
• Staff should be provided with training including general information about transsexualism and specific information to enable people to understand the needs of the employee involved. It is common for employees to take a short period of time off work and return in their new name and gender role at the point of change of gender. This provides a good opportunity to brief others in the company. Members of staff should refer to the transsexual person by their new name and use appropriate pronouns to their new gender role. The employee may want to contribute to this process, eg by making a note to be circulated concerning the change from his/her personal perspective.
• Any incidents of discrimination, harassment, bullying or victimisation against the transsexual person should — as in all cases — be dealt with promptly and in accordance with the company’s disciplinary and/or grievance procedure. It should be made clear to staff that such behaviour will not be tolerated and how such situations will be managed should be discussed with the transsexual employee.
Özlem Kulle is an Associate in the employment department at Fox Williams LLP and can be contacted for more information on this feature at email@example.com
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