The number of disputes at work relating to alleged discrimination against transgender individuals has more than doubled in the past year, with nine cases reaching a final hearing in 2021-22 compared with four the previous year.
Examples of allegations of discrimination against transgender employees include colleagues deliberately and persistently using the wrong pronouns when addressing or referring to transgender colleagues, transphobic comments on social media, and transgender individuals being harassed for using gender aligned toilet and changing facilities.
This rise in Employment Tribunal claims shows that transgender employees are feeling unsafe and unsupported at work and more needs to be done.
The Equality Act 2010 makes it unlawful to discriminate in employment on the grounds of gender reassignment.
If a worker discriminates against another worker, the employer can be held liable for their actions, unless the employer can show that they have taken reasonable steps to prevent the harassment or discrimination taking place.
There are a number of steps employers can take to create an inclusive and respectful workplace and protect themselves from grievances and claims arising from transgender issues. Actions for employers to take can include installing unisex bathrooms, offering gender-neutral uniforms and encouraging individuals to state and use their chosen pronouns to ensure they are able to correctly express their chosen gender identity. It is also important that employers provide adequate training on this highly emotive and complex issue for their workers and managers.
The number of Tribunal cases in relation to workers voicing gender-critical views is also on the rise, with six claims brought in 2021-22, compared with just one the previous year. In June 2021, the Employment Appeal Tribunal ruled that gender critical beliefs are a protected philosophical belief and therefore protected from discrimination under the Equality Act 2010.
In cases where employees do not share the same beliefs, workplace disputes can become highly emotive and very challenging for employers to deal with. The focus should not be on the belief itself, but on the actions that stem from that particular belief. Employers will need to tread carefully in order to balance the individual employees’ rights to hold often conflicting protected beliefs and to foster a culture that is truly inclusive.
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