Protection for those undergoing gender reassignment also applies to gender-fluid and non-binary workers.
Transgender discrimination at work
The confirmation comes after a gender-fluid former Jaguar Land Rover (JLR) engineer won a landmark case of harassment, discrimination and unfair constructive dismissal and was awarded £180k in compensation.
Ms R Taylor, an engineer at JLR for 20 years, had previously presented as a male but began identifying as gender-fluid and wearing women's clothes in 2017. This sparked abuse, insults and jokes from colleagues. The Tribunal heard there was little support from the company's management, and Taylor had problems accessing toilet facilities.
JLR claimed that Taylor did not fall into the definition of gender reassignment under section 7 of the Equality Act because Taylor was gender-fluid and non-binary. The Tribunal, however, disagreed, stating the argument was "totally without merit".
“Having heard submissions on this point, this employment tribunal considers it appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings....We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again.”
Taylor's compensation got lifted by 20% for the firm's failure to comply with the ACAS Code of Practice when grievances were raised during transitioning.
Dave Williams, HR executive director, issued a full apology and said, "We continue to strive to improve in this area, and we respect the outcome of the case."
JLR is not the only company to have faced legal action over handling gender identity issues. In 2018, Primark had to pay £47k compensation and implement a policy for workers after 'shocking' transgender discrimination.
HR advisor Kate Palmer from Peninsula said that poor understanding of LGBTQ+ individuals and their problems at work was "one of the biggest issues" employers faced today. Companies should start creating more inclusive workplaces by understanding the terminology and reviewing existing arrangements.
Here are some tips and how to promote workplace gender identity inclusivity:
1. Replace gendered language
Review your company literature, forms and other documents and communications, such as gendered salutations like 'Dear Sir/Madam' and 'Mr/Mrs' on employee or customer forms, etc.). Alternatively, replace it with gender-neutral alternatives, such as Dear Colleague/Dear Jonas Griffiths/Dear A.T. Gordon. Similarly, replace "If an employee wishes to discuss opportunities, he/she should contact his/her manager" with "If an employee wishes to discuss opportunities, they should contact their manager".
2. Ensure prefix availability in forms & surveys
Check that your HR and other data systems allow different prefixes, i.e. not just Mr/Mrs/Ms but also Mx. If this is not possible, consider whether you need this information. Don't forget the same procedure on paper-based documents.
3. Add pronouns to employee names
Adding pronouns after profile names and on email signatures helps raise awareness of gender identity and prevents assumptions. It also denotes a more inclusive organisation. e.g. First name, Last name (she/her).
4. Provide pronoun & vocabulary guidance
Explain which terms are appropriate and how staff should use them. Make sure to create a central resource for advice that employees can easily access.
5. Adapt your physical working environment
Assess whether there is a need for physical changes to your workplace, including gender-neutral toilet facilities, showers and changing rooms. Consider gender-neutral adaptations to any uniforms.
6. Remember that everyone is an individual
There is 'no one size fits all'. Every person, trans or not, has their own lived experience and perspective on the world. Make sure you treat everyone accordingly.
7. Be considerate of gender identity in HR processes
Be sensitive to changes of name and personnel record changes, including staff photos during recruitment and beyond. Offer temporary time away from client-facing activities if wanted during transition. Remember to reassure employees that they are in control of their personal information at all times.
8. Update your harassment & anti-bullying policies
Ensure they are sufficiently robust in this context and specifically include references to gender identity. And communicate the changes appropriately to all employees.
9. Review absence and grievance policies
To ensure fairness, ensure that your policies for gender-related absenteeism and grievances are handled the same way as other workplace absences and concerns.
10. Safeguard gender identity data
Gender identity is considered special category data. You must prevent non-consensual disclosure of gender identity information (e.g. Gender Recognition Certificate). Remember that under the Gender Recognition Act 2004, it is an offence for anyone who has acquired protected information in an official capacity to disclose it to any other person.
11. Minimise retention of data
In terms of historical information, it is best practice to only retain necessary documents, for example, those relating to pensions.
12. Train employees
Help your employees understand how to avoid gender identity-related discriminatory behaviours and workplace harassment training.
13. Refer to ACAS guidance
ACAS guidance, such as 'Supporting Trans Employees in the Workplace' can help you understand the issues, and the organisation can also offer advice.
14. Reach out for further advice & support
External organisations offering insightful guidance include Stonewall, Mermaids, METRO charity, Brook, Imaan, GIRES, Chrysalis and YoungMinds.
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