How can employers avoid gender discrimination claims?

Gender reassignment issues have hardly been out of the headlines in recent months. The subject is highly sensitive and needs to be approached in a very thoughtful and considered way by employers. News reports can give the impression that big legislative changes are taking place, but the reality is that the law has not (yet) changed.

Gender reassignment is one of the nine protected characteristics covered by the Equality Act 2010, and this protection extends to employees, contract workers, partners and office holders during all stages of the employment lifecycle. Moreover, unless the employer has taken ‘reasonable steps’ to prevent gender reassignment discrimination from taking place, the employer may also be liable for what one employee does to another. Taking ‘reasonable steps’ is not a new concept but we have a recent case that provides insight into what were considered to be ‘reasonable steps’ taken by the employer.

Direct discrimination

In V v Sheffield Teaching Hospitals NHS Foundation Trust and others the claimant, a transgender woman, worked as a catering assistant at the trust. The claimant reportedly said to a colleague that “she was so hot she had taken her underwear off, and made a wringing motion with her hands”. A meeting later followed with the manager to raise this and other points with the claimant. During the meeting, however, questions were asked more generally about whether the claimant wore or changed her underwear at work (among other questions). The tribunal concluded that the questions were asked because the claimant was a transgender woman. Such questions would not have been asked of a cisgender woman in a similar position. The conclusion was (on this aspect) a successful claim of direct gender reassignment discrimination.

In respect of other incidents that occurred, the tribunal commented that “there is no dispute that the claimant was subjected to transphobic abuse by unknown individuals early in her employment”. The tribunal was, however, “entirely satisfied that the trust proved that it had taken all reasonable steps to prevent employees from doing those acts or anything of that kind”.

 An exemplary approach

We know that to benefit from the ‘reasonable steps’ defence, employers must have taken reasonable steps before the discriminatory act occurred. In V, we see a clear reference to what is described by the tribunal as an ‘exemplary’ approach in respect of other incidents that occurred. The steps taken by the trust in that case were highlighted by the tribunal and can be distilled into the following key takeaways that can be applied to all workforces:

• Establish a culture in which employees are aware of and understand what is acceptable behaviour
• Provide a safe environment for trans persons
• Remember employers will be liable for any discrimination or harassment against a trans person
• Consider having in place an ‘acceptable behaviour at work’ policy and an ‘equal opportunities employment’ policy that are applied and enforced
• Implement measures designed to embed a zero-tolerance approach to any form of discrimination
• Provide training on equality and diversity issues to the workforce, including tailored training about trans and gender diversity
• Keep training regular

An ACAS research paper, supporting trans employees in the workplace, reports that measures implemented to accommodate a trans staff member can be reactive rather than pre-emptive. As an employer, being proactive and promoting diversity and inclusion, preventing discrimination, and reducing the risk of claims arising can positively impact recruitment and retention. While we are not seeing further changes to the laws in this area, ongoing action ‘on the ground’ to improve is essential so that everyone can feel that they can bring their whole selves to work.