Aside from the reputational issues and staff morale, the threat of litigation is real with the rise of discrimination claims continuing to creep up each year.
Not only is defending such claims expensive, but the levels of compensation for “Injury to Feelings” awards will increase as a result of updates coming into effect on 6 April 2021 to the Vento bands (the different levels of injury to feelings awards). These have been adjusted to take account of the RPI measure of inflation:
- A lower band of £900 to £9,100 for less serious cases.
- A middle band of £9,100 to £27,400 for cases which do not merit an award in the upper band.
- An upper band of £27,400 to £45,600 for the most serious cases.
- Amounts in excess of £45,600 can be awarded in the most exceptional cases.
“Trans” employees in the workplace – good practice!
In recent times there has been a greater awareness of gender identity in society; Stonewall estimates that around 600,000 people (1% of the UK population) identify as trans or non- binary. As a result many employers have been working on making their workplace a safe and inclusive environment. Below I set out some key things employers need to know:
- What does “trans” mean? The ACAS guidance uses the term “trans” to refer to individuals who are transgender (for example, assigned male at birth and has now transitioned or is transitioning to live as woman, or assigned female at birth and has transitioned or is transitioning to live as a man) and an individual with a non-binary identity (people who don’t identify as male or female, or may identify as both.
- Who is protected? If someone is undergoing, has undergone, or is in the process of changing their identity they will be protected against discrimination under the Equality Act 2010.
- Does medical intervention have to take place? Not necessarily. A man who decides for example to live as a woman with no medical intervention will be protected. Individuals are protected if they have started to live their lives in such a way as to match their gender identity.
- What do we do about toilets? In short, employers should allow a trans person to choose the facilities to use. It may be the case that those transitioning will not want to use facilities that are incompatible with the gender they now identify. If other employees object to this, they should be given time to adjust. In addition, refresher training on Equality and Diversity in the workplace will be a good means of raising awareness in an appropriate manner. If despite this other members of staff harass a trans colleague, then appropriate action will need to be taken in accordance with the relevant policies. The obvious solution is to provide gender neutral facilities which most modern workplaces now have. It’s also good practice to refer to “male”, “female” and “gender neutral” in signs – there is no need for images.
- What about dress codes? You should basically allow the trans member of staff to dress as the gender with which they identify. In terms of which uniform, allow the member of staff to choose a version that they feel comfortable with. Update your dress code policies.
- Do we need to allow time off for medical treatment? Any time off requests for gender- reaffirming processes should be treated just like any other medical absence requests. It is worth noting that the full transitioning process can take many months/years so it would be prudent to establish an open dialogue to understand time and support that may be needed.
- What language should employers use? Getting this right is an easy but important win, as inappropriate language usage can cause offence and be discriminatory. Employers should look to incorporate gender neutral language where possible. Use of words like “they” instead of he/she. Or using the term “Chair” instead of “Chairman”. Employers should not only look at communications, but also review policies, contracts and handbooks to bring them up to date.
- Update policies and provide training. This speaks for itself, raising awareness leads to better understanding amongst the workforce.
Equality and fairness in the workplace are very much front and centre on the agenda of modern workplaces and I would encourage all employers regardless of size to implement policies, training and monitoring when it comes to Equality in the workplace. If you would like to discuss this in more detail then please get in touch.
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This article was originally published on: 7 April 2021