Recent research into supporting trans people in the workplace found that:
- Over 1 in every 5 employees (21%) believes that their employer provides no specific support for trans people
- Workplace bullying is common with many trans employees experiencing some form of bullying on a daily basis
- There is a poor level of knowledge and understanding about trans issues in the workplace
- Recruitment and data protection are key areas where improvements are needed to safeguard trans employees from harassment or discrimination
The report concluded that robust policies are critical to providing a safe and inclusive working environment for trans colleagues, and these should make specific reference to trans or intersex employees and not treat gender identity as if it is the same as sexual orientation. Support for any colleagues that are transitioning should be designed with the employee at the centre of the process, with managers needing to draw up a flexible action plan after discussion with the employee
If your company has no specific policy or procedure to support trans colleagues then you are exposed to the risks from costly tribunal claims for discrimination and unfair dismissal
The Case
A trans colleague (who had previously transitioned from male to female) was employed by a major high street retailer, and at the interview informed the company that she preferred to be known as Alexandra, rather than by her birth name, Alexander. The company agreed that she could choose the name she would like on her name badge, but she would have to use her official name for payroll purposes
In error both the colleague’s ‘legal name’ and ‘preferred name’ were recorded as Alexander by the company on all documentation, including shift allocation sheets (which were given to supervisors) and so Alexandra’s supervisor, and other colleagues, became aware of her previous gender status and birth name
There then followed numerous incidents which made Alexandra feel harassed and bullied, including being repeatedly called Alexander by her supervisor, being regularly subjected to name calling and comments from colleagues (including being told that she had a ‘man’s voice’ and a ‘deep voice’), and in one incident a male contractor being told it was fine for him to enter the female toilets to carry out work because ‘no women were in there’ despite Alexandra using the facilities at the time
Alexandra raised two formal grievances during this period, both were investigated by a manager, but he concluded that no further action was required on both occasions. His decision was not communicated to Alexandra after either investigation, and she was not provided an opportunity to appeal either decision
Alexandra resigned and made a claim for gender reassignment discrimination at an employment tribunal
The Tribunal Decision
The tribunal found that the series of inappropriate comments and behaviours from Alexandra’s supervisor and colleagues each amounted to harassment. The Tribunal also held that the company’s failure to investigate and handle the grievances properly was direct gender reassignment discrimination, commenting that ‘We find it shocking that the respondents could not devise a way of keeping the claimant’s legal name off the core allocation sheets and out of the knowledge of her supervisors. The respondents ought to have been able to devise a system whereby only one or two people in HR and payroll were aware of the claimant’s transgender status… The respondents showed a complete lack of understanding from the beginning as to what was required’
The Tribunal awarded £47,433.03, which included loss of earnings, injury to feelings, and a 25% uplift for the company’s failure to follow the ACAS Code of Practice, and made a recommendation that the company ‘adopt a written policy regarding how to deal with staff who are transgender or who wish to undergo gender reassignment’
Case Summary
This case highlights the need to investigate and respond to grievances properly (as the failure to do so can amount to discrimination), and to educate all employees on the expectation regarding no bullying or harassment in the workplace
Having a policy of talking openly about trans people, and the process of transitioning, can help break down the taboo that can surround this issue and is not only beneficial in protecting the company against costly tribunal claims but equally will create an environment where trans colleagues feel supported throughout their employment
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