is this something that could affect your organisation or your employees? Should you be aware of these situations and how should you offer support?

The case referred to below was heard in the Channel Islands however, this case law may provide valuable guidance to employers nationally irrespective of size or industry…

Case law has changed very little since the introduction of Equality Act. In the landmark case Bisson v Condor Ferries in 2016, the case upheld that a claim for Direct Discrimination was brought against a cross channel ferry company.

The claim of direct discrimination was made by a passenger who happened to be transgender.

The tribunal upheld the claim by the transgender passenger was that the company had advised her to use the disabled toilet when she had asked to use the facilities.

It was also ruled that the use of toilet signs with the words ‘ladies’ and ‘gents’ were found to indirectly discriminatory against transgender customers, and the tribunal ordered the company to use male and female symbols instead of words on its toilet signs.

The things Employers should know……………….

Section 7 of the Equality Act 2010 protects anyone who is transgender or is planning to undergo a gender reassignment.

In Section 7 of the Equality Act 2010 Transsexualism is: A person has the protected characteristic of gender reassignment if the 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.

The law has identified four main stages of gender reassignment:

  1. Psychiatric assessment
  2. Hormonal treatment
  3. A period of living as a member of the opposite sex, known as the ‘real-life test’
  4. Gender reassignment surgery where this is suitable

The law protects employees at all stages from:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimisation

In addition to the above employers need to be aware that absences relating to employees proposing to undergo, are currently undergoing or have undergone gender reassignment do not automatically get inconsideration in the eyes of a disciplinary. Unlike pregnancy-related absences where by an employee is automatically entitled to have such absences disregarded. Each case must be treated on the individual’s circumstances and would involve a comparator.

Example: Two employees are dismissed for high levels of absence however, one employee is currently undertaking gender reassignment, they have had the same levels of absence. It would be fair to say they nither had been treated less favorably due to gender reassignment. However, if the employee whom was under taking gender reassignment has had a lesser amount of absence than the employee who is not receiving treatment – this could be deemed as being treated less favorably and therefore discrimination.

In real terms, the employer must show why they haven’t given special treatment for gender reassignment absences and they must show that their justification is reasonable if they have treated situations differently.

How to avoid claims:

  1. Allow employees to wear clothes appropriate to their expressed gender.
  2. Allow employees to use toilet facilities appropriate to their expressed gender.
  3. Educating fellow employees on the issues and reasoning surrounding Gender Reassignment can also help the process of an individual feeling comfortable within their role at work.
  4. Employers and employees should work together to find an appropriate transition process, using communication and taking into account the stage of treatment.

These steps are important when employees enter the real-life stage of gender reassignment.

There is no set timescale during the reassignment process, each individual will find appropriate time scales for different stages within their own process and therefore use the required facilities for their expressed gender.

Employees should undertake their own assessment and demonstration to the world of their expressed gender. Some may find this harder than others, some may undertake this earlier in the process whilst others will prefer to do it later on.

If you have any issues surrounding this subject please do not hesitate to contact:

ELCONS Employment Law Consultants

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