The number of employment disputes relating to alleged discrimination against transgender employees has more than doubled in the past year, new research has shown.
A study by specialist employment law firm GQ|Littler has revealed that nine cases reached decision stage at the employment tribunals in 2021-22 compared with four the previous year.
Some examples of disputes involving alleged discrimination against transgender employees include: colleagues deliberately and persistently using the wrong pronouns when addressing or referring to transgender colleagues; transgender employees being harassed for using facilities such as changing rooms and bathrooms that align with their gender; and employees making transphobic comments on social media platforms.
The Equality Act 2010 makes it illegal to discriminate against an individual based on a number of protected characteristics, such as sexual orientation and sex. It expressly includes those who have undergone or are undergoing gender reassignment. However, there is some debate as to whether the Equality Act protects discrimination against people who identify as non-binary or gender fluid.
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According to Caroline Baker, partner at GQ|Littler, employers can take a variety of steps to protect themselves from disputes around the issue. She says: “The rise in disputes, albeit from a small base, suggests more could be done to ensure that transgender individuals feel safe and supported in the workplace.
“Actions that employers are looking at implementing to create an inclusive workplace include encouraging employees to state their chosen pronouns, installing some unisex bathrooms in the office or introducing gender-neutral uniforms. Employers could also review their application forms to ensure that employees are able to correctly express their chosen gender identity.
“Training can help prevent discrimination based on a lack of understanding of gender identity.”
Disputes in the workplace have also occurred in relation to gender-critical views, with people alleging they were discriminated against and or dismissed unfairly due to them voicing gender-critical beliefs. In 2021-22, six tribunal cases were brought, compared with one the previous year.
People with gender-critical views believe that sex is biologically immutable and that it is impossible to change sex (and that a person’s gender is indistinct from their sex). In June 2021, the Employment Appeal Tribunal ruled that gender-critical beliefs can qualify for protection from discrimination under the Equality Act 2010. The Grainger criteria, established in 2010, are used in such cases to set out what qualifies as a “philosophical belief” under the Equality Act.
The Forstater case in summer 2022 was among cases to which the Grainger criteria were applied.
Baker said: “In cases where employees share beliefs that are at odds with one another, employers are advised to tread carefully. The focus should not be on the belief itself, but on the actions taken that stem from that particular belief.”
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She added: “If one employee discriminates against or harasses another on the basis of their beliefs, the employer could be held responsible unless they can show they have taken reasonable steps to prevent this harassment or discrimination from taking place.”
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