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Protecting transgender employees from discrimination in the workplace
12 March 2018

Protection for the transgender and LGBT community is firmly on the political agenda. A recent Employment Tribunal has ordered Primark Stores to pay a £47,000 bill for transgender discrimination resulting in a constructive unfair dismissal. This judgment is a stark reminder for employers to ensure that measures are in place to protect transgender workers from workplace harassment and discrimination. 

How are transgender employees protected in the workplace? 

“Gender reassignment” is a protected characteristic under section 7 of the Equality Act 2010, to protect transgender employees from discrimination. Under the Act, an individual will have this protected characteristic if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. A person is protected against transgender discrimination even if they have not fully transitioned in a physical sense but are living as a person of the opposite gender.  

Workplace discrimination against a transgender person could include: 

  • Direct discrimination – i.e. treating someone less favourably because they have the protected characteristic of gender reassignment.
  • Treating an individual less favourably because they have had absence from work that is because of gender reassignment.
  • Indirect discrimination – i.e. applying a provision, criterion or practice that puts someone with the protected characteristic of gender reassignment at a particular disadvantage compared to others that are not transgender.
  • Harassment – i.e. unwanted conduct or unwanted sexual conduct related to the individual’s gender reassignment that violates an individual’s dignity or creates a hostile, degrading environment for that individual.
  • Victimisation – i.e. subjecting an individual to a detriment because they have done a protected act  e.g. where an individual raises a grievance that they are being harassed by someone else and are subsequently dismissed. 

A recent case example of transgender discrimination…

Primark Stores were vicariously liable for discriminating against a transgender till worker. In December last year, the Employment Tribunal found that a retail assistant was constructively dismissed after being harassed by employees due to her transgender status - for which the employer was vicariously liable - and discriminated against by Primark, in its failure to adequately investigate and deal with her complaints. 

Below, we go through some of the key facts and issues regarding Primark’s treatment of her, both during the recruitment process and her period of employment:

Preferred name vs legal name

Issues arose at work in relation to the use of the Claimant’s birth name (Alexander) and her preferred name (Alexandra). Rotas and her name badge were issued on her first day which showed her birth name rather than her preferred name. Primark were unable to explain why these  had not been issued in her preferred name in the first place, when she had already stated her preferred name during the recruitment process. The Tribunal also noted that this was a failure to protect her confidentiality in respect of her transgender status.

Harassment by staff members

The Claimant succeeded in her claim of harassment when she was asked by her supervisor to clarify her name, having done so already. The supervisor continued to call her Alexander, despite her objections. Other incidents included the spraying of men’s aftershave in the claimant’s proximity and references being made to the smell of men’s {** urinals ** }. The claimant’s complaints were quickly dismissed. A number of other incidents occurred, including an occasion when an electrician asked a colleague whether there were any ladies still in the toilet area, to which he was told there were no “ladies” present despite the claimant using the facilities at the time. Despite being supported by the electrician and the matter being briefly investigated, the colleague’s evidence was believed over the claimants and no follow up action was taken.

The claimant was then signed off work with stress. On her return she was still working close to her harassers and complained about this. She again went off work and complained. Primark began disciplinary proceedings against her for non-attendance. She attended an investigatory meeting but walked out and refused to engage in the process further until her original complaints were properly investigated. The claimant eventually resigned and alleged she had been subjected to harassment on the basis of her gender reassignment.

The Tribunal upheld the claimant’s claims of direct discrimination. It said that she had been treated less favourably as a result of her transgender status because she had not received an outcome to her grievance. It also found Primark vicariously liable for the acts of harassment by its employees, towards the claimant.

Considerations for employers

The Tribunal made a number of recommendations to Primark, which employers should consider against current practices. Some of these are noted below:

  • Have a policy in place on dealing sensitively and appropriately with staff who are transgender or wish to undergo gender reassignment. Integral to this will be issues around protecting the individual’s confidentiality from the outset (i.e. from the recruitment stage), access to sensitive personal data and managing this on a day-to-day basis e.g. presenting the individual to others in accordance with their self-recognised gender and preferred name. 
  • Train managers and those that recruit staff on how to deal with this issue sensitively and appropriately. 
  • Amend training materials to include references to transgender discrimination to raise awareness, understanding and to send a clear message that this is unacceptable. 
  • Incorporate protection against transgender discrimination and harassment into all equality, harassment and disciplinary policies and make clear that it will be dealt with robustly where found i.e. as a gross misconduct offence.
  • Incorporate into grievance training materials the importance of consistent application of grievance procedures to all, and ensuring that managers are trained to this principle. Also, ensure managers understand the importance of giving the individual a right of appeal against an outcome. 

It is also interesting to note that recent press reports have highlighted the story of  a teacher who refused to call a transgender pupil by his preferred name, who was resultantly warned by the police that his actions were potentially a “hate” crime. Stories such as this demonstrate the importance of protecting the rights of transgender people against acts of discrimination. More generally, employers should always ensure that the Acas Code is complied with when investigating allegations of discrimination. A failure to do so, as we have seen, can result in a significant increase in compensation, which employers will bear the cost for.

This is can be a really difficult area for employers to manage. Training is key, along with dealing with discrimination issues robustly and consistently.  

Employment Law Conference: The future of work - Diversity and inclusivity in the 21st Century

If you would like to find out more about handling transgender discrimination complaints or how to encourage workplace diversity, please do sign up to our Diversity and Inclusivity conference in Reading on 17 May 2018, which will discuss the legal issues, risks and costs associated with key equality and diversity concepts and also how to encourage a diverse workforce and break down the stigma in respect of transgender workers.

To find out more contact our Head of Training, Emma O’Connor, on 0118 952 7210 or [email protected].

Alternatively, please contact the Employment Group on 0118 952 7284 if you have any queries that you wish discuss with us - we will be more than happy to help! 

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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