Law guide: Employment

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Gender reassignment

Gender reassignment

Contents

Introduction

The Equality Act 2010 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 irrespective of whether the gender reassignment has been completed. It is also unlawful to discriminate against a worker because they are undergoing or intend to undergo the gender reassignment process.

A worker is not protected if they do not intend to live permanently in 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 reassignment status without it amounting to unlawful discrimination, in order to comply with another law or if there is a genuine 'occupational requirement'.

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 Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

  • Your perception of their gender reassignment status, regardless of whether or not the perception is correct.
  • The gender reassignment status of another person (also known as discrimination by association). Examples include a worker being treated less favourably because they live with someone who is undertaking gender reassignment or because you dismissed them after they have refused to comply with instructions that would require them to discriminate against someone because of their gender reassignment status.

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

You cannot defend a direct discrimination claim by 'justifying' it (arguing that your actions were a proportionate means of achieving a legitimate aim).

Indirect gender reassignment discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all the workers in the workplace which places a group of employees at a particular disadvantage compared to other workers because of their gender reassignment status and a worker within that group suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you can show that its application is a proportionate means of achieving a legitimate aim.

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 actual or perceived gender reassignment status, or association with someone undergoing gender reassignment. 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.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

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 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 Equality Act relating to gender reassignment discrimination
  • They have alleged that you or another worker have contravened the provisions regarding gender reassignment discrimination in the Equality Act
  • You believe that they have done or may 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 action.

Positive action

Positive action in training and applying for particular positions

If you reasonably think that a group of your workers who share a protected characteristic (race, age, sex, sexual orientation, marital or civil partnership status, gender reassignment, pregnancy and maternity, disability or religion or belief)...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in your workforce,

...then you can take any proportionate action that enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

You are allowed to provide special training to members of the group. You can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless you meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. You will be able to take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • You do not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.

The Act does not require employers to take positive action and it is therefore voluntary.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

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 Employment 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

See the Acas website for more information on gender reassignment discrimination. Acas offers free, confidential and impartial advice on all employment rights issues.

The Equality and Human Rights Commission (EHRC) have a number of employer guides regarding your obligations under the Equality Act 2010.