Workplace Discrimination

Historical Development

Statutory protection from anti trans workplace discrimination in the UK has its origins in the decision of the European Court of Justice (ECJ) in P v S and another 1996. In that case, the mtf claimant was dismissed by her employer shortly before undergoing gender reassignment surgery. The claimant appealled under sex discrimination but an employment tribunal held that she had no redress under domestic law. This was because the then Sex Discrimination Act 1975 (SDA) only protected those discriminated against on the grounds of their biological sex, and so did not cover transsexuals.

Following the European Court's judgement, Following the ECJ’s decision, the UK Government enacted the Sex Discrimination (Gender Reassignment) Regulations 1999 SI 1999/1102. This inserted S.2A into the SDA, prohibiting direct discrimination and victimisation on the ground of gender reassignment.

In 2005, when the Employment Equality (Sex Discrimination) Regulations 2005 SI 2005/2467 inserted a new S.4A into the SDA to provide for a freestanding right to be protected from harassment, S.4A(3) specifically extended protection to anyone who was intending to undergo, was in the process of undergoing or had undergone gender reassignment. The SDA, however, never expressly prohibited indirect gender reassignment discrimination.

The principles from the equality act

The SDA was superseded by the equality act 2010. Under the Equality Act 2010, an employer cannot discriminate against someone with a protected characteristic, this includes gender reassignment under section 7. For a more in depth look at the Equality Act, click here.

this means that an employer must not discriminate on any of the grounds of the ea ie an employer must not directly discriminate indirectly discriminate subject to harassment or victimise a trans person or aditioally treat an employee less favourably dueto absenses because of gender reassignment

Employment practices

Though the common law rule under Allen v Flood and Taylor 1898 is that an employer has discretion as to whomever they offer employment, such a freedom is restricted by the equality act.

So under section 39 of the equality act at section 1 an employer must not discriminate against a trans person in choosing who to offer employment, in the terms of employment or by not offering employment. At section 2 an employer must not discriminate against a trans employee by not offering them equal access to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; or by dismissing them or subjecting them to any other detriment.

However s 39(1)(a) or (c), or 39(2)(b) or c) will not be contravened where the employer establishes a requirement in relation to a protected characteristic, and the employer can demonstrate that the requirement is (i) an occupational requirement; (ii) a proportionate means of achieving a legitimate aim; and (iii) the person in question does not meet the requirement.

This means discrimination can be allowed in limited circumstances where there is an occupational requirement that someone has a certain characteristic if there is a legitimate and proportionate justification.

So for example if a rape centre has an occupational requirement that the staff are female, they could legitimately discriminate against a trans woman on the basis that some members of the group would be traumatised by the idea of a male, or someone with a male past being present, even if the trans woman has a GRC. On the inverse, had the legal battle led by emily bendell against the garrick clubs men only policy gone to court, it likely would not have been found that the women ban was serving any legitimate aim (perhaps the reason they voted to remove it before going to court)

Absence for gender related issues

Under s 16 of the Equality Act there is special protection for employees who are absent from work because of gender reassignment. an employer discriminates against a trans person if they treat an employee less favourably for an absence relating to gender reassignment than they would be if they were absent due to illness, sickness or injury.

The explanatory notes give them example: ‘A female to male transsexual person takes time off work to receive hormone treatment as part of his gender reassignment. His employer cannot discriminate against him because of his absence from work for this purpose.’

And The EHRC Employment Code summarises the effect of this provision as follows: ‘If a transsexual person is absent from work because they propose to undergo, are undergoing or have undergone gender reassignment, it is unlawful to treat them less favourably than they would be treated if they were absent due to illness or injury, or — if reasonable — than they would be treated for absence for other reasons’ (para 17.27). this is not a right to have time off but to not treat absenses due to gender as different.

Harassment

Section 26 provides for three different types of harassment. The first is where a person engages in unwanted conduct related to a relevant protected characteristic that has the effect of violating the dignity of another person or creating an intimidating, hostile, degrading, humiliating, or offensive environment.

If Mandy is a trans woman and her line manager makes fun of her, calls her names, slurs and uses male pronouns despite being told it upsets her.

The second type occurs where a person engages in unwanted conduct of a sexual nature and that conduct creates an intimidating, hostile, degrading, humiliating, or offensive environment for the victim.

Jane, Lisa and Charlie are female recycling operators in a male dominated tip. They find that their male colleagues have a game where they put up posters of the women in the cafeteria and have rated them all based on attractiveness with ticks.

The third type of discrimination is similar but is when a person engages in unwanted conduct of a sexual nature that is related to gender reassignment or sex, and (i) that conduct creates an intimidating, hostile, degrading, humiliating, or offensive environment for them; AND (ii) because of the victims rejection of, or submission to, the conduct, they are treated less favourably than if they had not rejected, or submitted to, the conduct.

vera's line manager tells her she is next in line for a promotion. Later that day, he asks her for sex but she refuses. A few weeks later, the promotion is awarded to someone else.

Now that harassment has been defined the provisions in the act relevant to workplace harassment are:

s 40: it is unlawful for employers to harass employees and job applicants in the course of their employment, meaning if they are on work premises or at any work organised event.
S 109(1): an employer is vicariously liable for acts done by a person in the course of their employment (A) to another person (B) and under subsection 3 it does not matter if the act is done with the employers knowledge or approval as an act done by someone in the course of their employment is treated as having also been done by the employer- ie anything done by an agent for a principle with the authority of the principle must also be treated as having been done by the principle.
s109(4): in proceedings against A’s employer it is a defence for the employer to show they took all reasonable steps to prevent the employee (A) from harassing (B). This could be warnings or trainings against harassment.
S110: employees can be liable for harassment of their colleagues.

Dress codes

In Kara v London Borough of Hackney EAT 0325/95, the Appeal Tribunal held that the complainant, a male transvestite, was not discriminated against when his employer prohibited him from wearing women’s clothing to work. Such clothing was not deemed compliant with the employers reasonable expectation of employees looking ‘clean, neat and appropriately dressed’. This was however before the legal protection of someone ‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’