Weekly dilemma: Gender reassignment

One of my employees has told me that he is about to undergo gender-reassignment surgery. This is setting off all sorts of alarm bells in my head. What should I do about sick pay? And how should I handle his eventual return to work?

This is one of those situations where your very first task is to make sure that no one, particularly not the employee in question, hears those alarm bells. Although very rare and an alien idea to most (hence the alarms), transgender status is one of the characteristics protected under the Equality Act. Hostile or clumsy handling of the situation could lead you quickly down the path to your local employment tribunal.

That alarm now under control, what next? Discussion with your employee may be helpful, ideally before he goes away. Are there any particular messages he will want given not just to staff but also to clients and contacts? It seems unlikely that your employee will not have told at least his closest colleagues of his intentions, but one never knows, and there is no harm in asking. There is nothing wrong in demonstrating a degree of innocence in these matters and seeking your employee’s help in dealing with them sensitively.

Should the absence be paid? Although the status is protected, that does not impose any obligation upon you to treat the absence as sickness, unless the operation is prescribed on medical grounds. Otherwise, without seeking to belittle the position, it is essentially a voluntary step akin (legally speaking) to cosmetic surgery. If there is a medical imperative for it, however, the position is different; then it will count as sickness, to be paid or unpaid in line with your usual rules. There is nothing in the protected nature of this procedure that requires the absence to be paid regardless.

As to his (her, really) return to work, your legal position is quite simple – treat her as a woman, use her chosen name and be as blind as you can to your knowledge of what she was. It may pay you to gather the employee’s colleagues together while she is away and lay down some ground rules for their behaviour on her return. The message to those staff is clear: no one undertakes such a procedure lightly, but equally there is widespread ignorance of the psychological drivers behind that decision which may manifest itself in inappropriate behaviours on the part of your staff.

The worst thing you can do, therefore, is to allow or encourage any of your staff to show any lack of respect for that decision by attempts at jokes or the expression of their own phobias. The issue of which toilets your employee will use on her return is bound to raise its head almost immediately, for example. Your female staff may be uneasy about a “man” using their toilets, but they will just have to get over it – for all practical purposes your employee is now a woman and must be treated as such. The men in turn must be directed that they should not seek to cover up their own squeamishness by sexist jokes even if your transgender employee was game for such things before the operation.

The purpose of getting the other staff together in advance is two-fold. In an ideal world, it will mean that they welcome their colleague back in an open-minded and professional manner. In the real world, the meeting and a decent note of it may give your company a defence to a discrimination claim should they not.

David Whincup, partner and head of employment, London, Squire Sanders Hammonds








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