Law guide: Employment

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Gender reassignment

Gender reassignment

Contents

Introduction

The Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999 provides that you cannot treat a worker less favourably than others because of their gender reassignment status.

Gender reassignment is the process of changing one's physiological and other characteristics relating to one's particular sex to that of the opposite sex.

The protection covers a worker receiving medical supervision irrespective of whether the gender reassignment has been completed. It is also unlawful to discriminate against a worker because they have undergone, are undergoing or intend to undergo the gender reassignment process.

A worker is not protected if they do not intend to live permanently as the opposite gender to their birth sex.

Areas of gender reassignment discrimination in employment

Discrimination in the workplace is unlawful in all aspects of employment, including the recruitment process, status, training, promotion and transfer opportunities, redundancy, dismissal and even post-employment.

In some cases, however, a job can be offered to someone of a particular gender without it amounting to unlawful discrimination, in order to comply with another law or if there is a genuine 'occupational qualification' for the role.

Types of gender reassignment discrimination

Direct discrimination

This is where a worker is treated less favourably because of their gender reassignment status when compared with another worker (known as a 'comparator') who is not undergoing gender reassignment but who shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Industrial Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

The only available defence to a direct discrimination claim is proving that there was no discrimination.

Harassment

Harassment is unwanted conduct (including conduct of a sexual nature) towards a worker by an employer or another worker because of that worker's reassignment status. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

Unlawful gender reassignment harassment will also occur if an employer treats a worker less favourably because they have rejected or submitted to any unwanted conduct.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

For example, making sexual remarks or gestures or referring to people who are undergoing gender reassignment by a potentially offensive nickname could all result in unlawful harassment.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment, if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is treated less favourably than another worker because:

  • They have asserted their right not to be discriminated against on the basis of their gender reassignment status by making a complaint about gender reassignment discrimination
  • They gave evidence in a complaint of gender reassignment discrimination
  • They did anything else under the gender reassignment regulations relating to gender reassignment discrimination
  • They have alleged that you or another worker have contravened the regulations regarding gender reassignment discrimination
  • You know that they intended to do or you suspect that they have done or intend to do any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned actions.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

You can get more information from the Labour Relations Agency (LRA), which offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline on 028 9032 1442, from 09:00 to 17:00, Monday to Friday.