Gender Reassignment Discrimination

Employment Protection
The Equality Act 2010
The Protection From Harassment Act 1997
The Data Protection Act 2018 and GDPR
The Human Rights Act 1998
The Gender Recognition Act 2004
What You Can Do
Gender Reassignment Discrimination
Prohibited Conduct
Who Must Not Discriminate?
Direct Discrimination
Indirect Discrimination
Absence from Work
Harassment
Victimisation
Public Authorities
Lawful Discrimination
Some Support Groups and Organisations
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Employment Protection

This page explains gender reassignment discrimination and provides you with the resources to structure your grievance or employment tribunal claim correctly.

You are protected from discrimination at work by;

The Equality Act 2010
The Protection from Harassment Act 1997
The Data Protection Act 2018
The Human Rights Act 1998 (if you work in the public sector)
Some people are also protected under the Gender Recognition Act 2004

The Equality Act 2010

The EQA 2010 protects people who are;

actual and prospective employees;
ex-employees;
apprentices;
some self-employed workers;
contract workers;
actual and prospective partners in a partnership or a limited liability partnership; and
people seeking or undertaking vocational training.

The Act lists certain special attributes of people called “protected characteristics” and makes discrimination on the basis of a protected characteristic unlawful. Protected characteristics are listed in Section 4 EQA 2010 as age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These are the particular unique characteristics which are protected under EQA 2010. Gender reassignment is a protected characteristic under EQA 2010.

Section 7 EQA 2010 says that you have the protected characteristic of gender reassignment if you are proposing to undergo, are undergoing or have undergone a process of reassigning your sex by changing physiological or other attributes of sex. It includes going through the medical gender reassignment treatment, but you don’t have to actually go through the medical treatment in order to be protected. This means that you are protected by EQA 2010 if you decide to live permanently in a new gender role by changing your name and gender pronouns without undergoing any medical procedures.

This has been a hard won battle through cases such as P v S and Cornwall County Council [1996], Chessington World of Adventures Limited v Reed [1997], Goodwin v The United Kingdom [2002], A v The Chief Constable of West Yorkshire Police [2004], Richards v the Secretary of State for Works & Pensions [2006] and K.B. v NHS Pensions Agency [2004]. See more at Transgender Case Decisions

You don’t need qualifying service to pursue a claim for discrimination. You have these rights at the point of recruitment, before you have even started the job.

If you are being discriminated against at work, use the Grievance Builder to raise a discrimination grievance or the ET1 Builder to write your Employment Tribunal Claim

The Protection From Harassment Act 1997

Under the Protection from Harassment Act 1997(PHA 1997) it is unlawful to “pursue a course of conduct” that the perpetrator knows, or ought to know would amount to harassment. Harassment is not formally defined in the PHA 1997 but does include oppressive and unreasonable behaviour, calculated to cause alarm or distress. This Act was originally intended as an anti-stalking measure. S1 PHA 1997 creates two classes of criminal offence. The lesser offence is liable to summary conviction, whilst the offence of harassment can also constitute an offence under the Police and Criminal Evidence Act 1984 s.24(2). S3 provides that any offence under S1 may be the subject of a civil claim by the affected person. You can bring a claim under this Act up to 6 years after the event rather than the 3 months allowed under anti-discrimination law.

Under PHA 1997, your employer can be vicariously liable for a course of conduct by your colleague that is seen as harassment. The harassment does not need to be because of a protected characteristic. In Majrowski v Guy’s and St Thomas’s NHS Trust [2006] Mr Majrowski sued Guys and St Thomas’s NHS Trust under the PHA 1997 claiming that his manager bullied him because he was gay. The House of Lords said that the PHA 1997 created rights, including a right to damages, and also included vicarious liability.

The Data Protection Act 2018 (DPA 2018) and GDPR protect your confidential information at work. Gender reassignment and any information about your gender history is personal data which can only be processed for specified reasons. This means that information about your Trans status cannot be recorded or passed to any one unless special conditions are met. You will be entitled to compensation from your employer if you suffer any damage because your employer has not taken care of your information.

[ see Grievance, discipline, dismissal and GDPR, Your right to privacy at work – personal emails and WhatsApp messages, Your rights under GDPR, The Data Protection Act 2018 and GDPR ]

The Human Rights Act 1998

Article 8 of the Human Rights Act 1998 (HRA 1998) protects your right to respect for your private and family life at work if you are employed in the public sector. This includes your right to express your sexual identity, to live a particular lifestyle and to choose the way that you look and dress. It also means that your personal information should be kept securely and not shared without your permission. Article 3 prohibits torture, and inhumane or degrading treatment or punishment. Article 14 says that all of the rights and freedoms in the HRA 1998 must be protected and applied without discrimination on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or any other status.

The Gender Recognition Act 2004

The Gender Recognition Act 2004 (GRA 2004), allows you to get a Gender Recognition Certificate (GRC) if you have permanently transitioned. The GRC allows you to change your legal gender if you are over 18 by getting a new birth certificate which allows you to be recognised in law by your acquired gender. If you have a GRC, section 22 GRA 2004 says that all information about your gender history is “protected information” which must not be passed on to anyone without your permission. Protected information is defined in s22(2) GRA 2004. Section 22 is designed to protect the privacy rights of Trans people under Article 8 of the European Convention on Human Rights by criminalising the disclosure of information relating to your gender history by a person who got hold of that information in an official capacity. This right is further explained by the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005. Having a GRC has no bearing on your employment or employment protection. It just gives another layer of privacy.

What You Can Do

There is no need to tolerate discrimination at work, when there is such an effective law protecting you from it. The law is only useful if you use it. If you are facing discrimination because of your status, you must first raise a formal grievance with your employer, to give your employer an opportunity to put things right. At the same time, you can submit a discrimination questionnaire to your employer to help you collect evidence about the discrimination. If you have already been fired and you think your dismissal was connected to or because you are Trans, you should write a Letter before Claim to your employer within three months of your dismissal. If the grievance does not resolve the matter, you should contact the free ACAS Early Conciliation service for assistance. There are strict time limits for submitting a claim to the Employment Tribunal. The time-limit is usually three months less one day for each act of discrimination.

Gender Reassignment Discrimination

Under section 39 EQA 2010, it is against the law for your employer to discriminate against you because you intend to undergo gender reassignment, are undergoing gender reassignment or have undergone gender reassignment. This protection covers actual and prospective employees, ex-employees, apprentices, some self-employed workers, contract workers, actual and prospective partners in a partnership or a limited liability partnership; and people seeking or undertaking vocational training. Recruitment, promotion, access to benefits, selection for redundancy, vocational training and all other workplace activities are protected.

How does the Equality Act protect you at work?

Under section 39 EQA 2010, it is against the law for your employer to discriminate against you in recruitment, promotion, access to benefits, selection for redundancy, vocational training, dismissal and all other workplace activities. The EQA protects you by;

Providing a list of characteristics that it will protect (the protected characteristics).
Describing the different types of conduct and behaviour which your employer must not do (prohibited conduct)
Providing a list of the specific types of activity in the employment relationship that are protected.
Providing remedies and compensation if your employer is in breach of its provisions.

In order to have a claim in the Employment Tribunal, you will need to prove that you have the particular protected characteristic, your employer has discriminated against you at work because of your protected characteristic, and that you suffered (or could suffer) detriment and loss because of what your employer has done or allowed to happen. You don’t need two years’ service to take your discrimination case to the employment tribunal; you can claim discrimination if;

You are applying for a job.
You have left the job.
You are an employee.
You are not an employee, but provide personal services.
You are a contract worker.

Prohibited Conduct

There are four types of discrimination under EQA 2010. These are direct discrimination, indirect discrimination, harassment and victimisation. In addition, your absences from work when you are transitioning, should not be treated differently to any other authorised absences in the workplace. Any behaviour of your employer that falls under these headings is called “prohibited conduct”. Your employer must not carry out any prohibited conduct, allow your colleagues, agents or contractors to carry out the prohibited conduct.

An employer who carries out any prohibited conduct will be liable under the Equality Act. Part 8 EQA 2010 provides broad headings of the prohibited conduct that your employer must not carry out. Different prohibited behaviours fall under these headings and are addressed in the cases that come before the courts. You don’t need qualifying service to pursue a claim for discrimination in the Employment Tribunal. You have these rights at the point of recruitment, before you have even started the job.

Giving instructions to discriminate

Section 111 makes it unlawful to instruct, cause or induce another person to discriminate, harass or victimise a third person. The section provides a remedy for the person who receives the instruction and the intended target of the prohibited instruction whether or not the instruction is carried out, provided the recipient or intended victim suffers detriment as a result of the instruction. In Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1999]. When she started work as a receptionist, Van & Truck Rentals told her “We do have a special policy regarding coloured and Asians. We have got to be careful who we hire the vehicles to. If you get a telephone call from any coloured or Asians you can usually tell them by the sound of their voice. You have to tell them that there are no vehicles available”. As a result of this instruction Mrs Sargent resigned from her job.

The Tribunal found that in the course of her employment Mrs Sargent was asked to carry out a policy which involved unlawful discrimination against blacks and Asians. As a result of this she felt unable to continue with the work and resigned. This was a constructive unfair dismissal, and because of the discrimination she did not need service to claim in the Employment Tribunal.

The Court of Appeal upheld her claim of race discrimination, stating that she had been less favourably treated than a person willing to carry out the discriminatory policy and that she had been put in an intolerable position as a result. Section 112 makes it unlawful to knowingly help someone to discriminate against, harass or victimise another person. In certain situations liability for this kind of behaviour can extend beyond the end of the employment relationship.

Who Must Not Discriminate?

Employer

Sections 39, 40 and 83(4) make your employer liable for prohibited conduct before, during and after employment. Before employment, employers must not discriminate against or victimise job applicants in the arrangements they make for deciding who should be offered employment, the terms on which they offer employment, or by not offering employment because of an applicant’s Trans status. During employment, your employer should not discriminate against or victimise you as to the terms of your employment, in the way they make access to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service, by dismissing you or subjecting you to any other detriment. A detriment is anything which might cause you to change your position for the worse or put you at a disadvantage, for example, being denied training or promotion. Section 108 applies the prohibition After your employment has ended. The EHRC Guide for employers – “What equality law means for you as an Employer: dismissal, redundancy, retirement and after a worker has left” provides detailed guidance on your employer’s responsibilities.

Colleagues

Your employer is also liable for prohibited conduct by your colleagues in the course of their employment, whether or not your employer knew or approved of it. Section 109 EQA 2010 states that anything done by an employee in the course of employment must be treated as also done by the employer. This is called “vicarious liability“. Section 110 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of his or her employment. Section 109(4) says that the only defence an employer has is if they are able to prove that they took all reasonable steps to stop that particular conduct or other behaviours like it from happening. The words “in the course of employment” means things that your colleagues do whilst they are doing their job. Paragraph 10.46, Employment Code of Practice.”The phrase ‘in the course of employment’ has a wide meaning: it includes acts in the workplace and may also extend to circumstances outside such as work-related social functions or business trips abroad. For example, an employer could be liable for an act of discrimination which took place during a social event organised by the employer, such as an after-work drinks party.”
The Court of Appeal described the phrase in the case of Jones v Tower Boot Company Limited [1997], and said that it should be interpreted in the broad sense in which it is employed in everyday speech. It covers prohibited conduct which happens outside work as long as there is a direct link to work for example during a work trip, or party. The application of the phrase would be a matter of fact for the Employment Tribunal to decide.

This means that you can sue your colleagues AS WELL As your employer for discrimination, and your colleague will have to pay you compensation if found liable by the Employment Tribunal. In Miles v J. Gilbank [2006], Ms Miles personally had to pay Ms Gilbank £25,000 for vicious and inhumane acts which were sustained and personally encouraged by Ms Miles who was the manager.

Agents

Section 109 makes your employer liable for the prohibited conduct of its agents while acting under your employer’s authority. Agents include recruitment agencies and occupational health services. It makes no difference whether your employer knew about the behaviour or approved of it. In Taiwo Lana v Positive Action Training in Housing Ltd (PATH) [2001], PATH placed Ms Lana with Walker Management as a trainee quantity surveyor. She was expected to be a trainee from 1 October 1998 until 30 September 1999. The placement was effected by two contracts. The first contract was between Ms Lana and PATH, the second between PATH and Walker Management. When Walker Management found out that Ms Lana was pregnant they terminated her contract. PATH then terminated its training contract with Ms Lana because they said they did not have any work for her. The Employment Appeal Tribunal (EAT) said that PATH was liable because they had agreed to provide Taiwo with work experience, and contracted with Walker Management (which was their agent) to provide her with the work experience placement.

Third Parties

Your employer can also be held liable for the actions of a third party who is not an employee, if your employer does not intervene or stop the behaviour because you are a Trans person. In the case of Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] the House of Lords said that an employer will not be liable for in such a situation unless the reason for the employer’s failure to take action is related to the employee’s protected characteristics, or the third party was acting as the employer’s agent.

Trustees and managers of occupational pension schemes

Discrimination, harassment and victimisation because of gender reassignment by trustees and managers of occupational pension schemes are also prohibited by section 61.

Agencies

The EQA 2010 also covers work situations where your employer is different from the company or organisation that you actually work for. This company or organisation is called the “principal”. Section 41(5) describes the principal as a person who makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). An individual who works under such an arrangement is called a “contract worker”. Section 41(7) describes a contract worker as a person who is supplied to the principal and is employed by another person who is not the principal. The worker must work wholly or partly for the principal, even if they also work for their employer, but they do not need to be under the managerial power or control of the principal. An example of such a situation is where you are supplied by an employment agency. The employment agency is legally your employer and sends you out to work for another company (the principal). Contract workers also include employees who are seconded to work for another company.

Section 41 protects contract workers in the same way as employees are protected against discrimination, harassment and victimisation. The principal (the end-user) and your legal employer both have obligations not to carry out any prohibited conduct. It is unlawful for a principal to discriminate against or victimise a contract worker;

in the terms on which the principal allows the contract worker to work;
by not allowing the contract worker to do or continue to do the work;
in the way the principal affords the contract worker access to benefits in relation to contract work, or by failing to afford the contract worker access to such benefits; or
by subjecting the contract worker to any other detriment.

There are special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

Partnerships or proposed partnerships – Section 44
Limited Liability Partnerships (LLP’s) or proposed LLP’s – Section 45
Barristers – Section 47
Employment-service providers – Section 55

Direct Discrimination

Section 13 says that direct discrimination is where your employer treats you less favourably than they treat others at work because;

of your gender reassignment as a transsexual.
someone thinks you are transsexual, for example because you occasionally cross-dress or are gender variant. This is known as discrimination by perception.
you are connected to a transsexual person, or someone wrongly thought to be transsexual. This is known as discrimination by association.
Less favourable treatment means you have been treated differently to someone else who isn’t Trans and you’re worse off because of it. Section 24 says that it is irrelevant who the person discriminating against you is, so a person cannot say that they could not possibly have discriminated against you because they are also Trans. Section 16 says that absence from work because of gender reassignment cannot be treated less favourably than absence because of sickness or injury. Being treated unreasonably on its own will not amount to direct discrimination. If your employer is able to show that they would have treated all workers just as badly, then there will have been no less favourable treatment and so, no direct discrimination.

The comparator

To get around this, you need to compare yourself with an actual or hypothetical person in the same situation as you, but who does not have your protected characteristic (the comparator). This is how you show that you have been treated less favourably than everyone else. If there is no one to compare yourself to in the workplace, you can ask the employment tribunal to compare you to a hypothetical comparator.

Employer’s defence

Once you have proved direct discrimination, your employer will have no defence to it. This was confirmed by the House of Lords in Watt (formally Carter) v Ahsan [2007].

Indirect Discrimination

Section 19 defines indirect discrimination as being where an apparently neutral policy, rule, practice or guideline is applied generally but particularly disadvantages transsexual people. This policy, rule, practice or guideline is called “provision, criterion or practice” (PCP) in the Act.

The pool for comparison

The PCP applies to a certain group of people in the same way no matter who they are. Within this group, some people with a particular protected characteristic may be put at a particular disadvantage by the PCP. The Employment statutory code of practice says that; “….. the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively.”

Employers defence

Your employer can defend indirect discrimination if they are able to prove that PCP is a “proportionate means of achieving a legitimate aim”. The courts carry out a balancing exercise between the employer’s need to use the PCP and the discrimination caused by the PCP. The Employment statutory code of practice says that the PCP should be legal, not discriminatory in itself and must represent a real, objective consideration to be regarded as a legitimate aim.

Absence from Work

Under section 16, it is unlawful to treat you less favourably if you are absent from work because of gender reassignment. The Equality Act 2010 explanatory notes says that it is unlawful for an employer to discriminate against a female to male transsexual person who takes time off work to receive hormone treatment as part of his gender reassignment. This would apply to any absence that you take because of your gender reassignment procedures. Chapter 17.27 of the Employment statutory code of practice says that employers should not discriminate because of gender reassignment when taking performance management action against an employee.

Harassment

Harassment is defined in section 26(1). It prohibits harassment related to your protected characteristic of gender re-assignment, sexual harassment, and less favourable treatment because you submit to or reject sexual harassment or harassment related to sex or gender re-assignment.The specific kind of prohibited conduct is behaviour that violates your dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for you at work. Unwanted conduct includes “…. spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour”. – Employment Statutory Code of practice

Harassment may occur over a period of time through a series of relatively minor incidents of harassment or it may occur through one blatant incident. In either case you have to show that your working environment has been affected in such a way and to such a degree as to violate your dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for you. Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. it is not necessary for the worker to show that another person was, or would have been, treated more favourably

Section 40 makes it unlawful for an employer to harass an employee or an applicant for employment, and section 41 makes it unlawful for a principal to harass a contract worker.

Victimisation

Section 27 makes it unlawful for your employer to punish you because you have complained about discrimination. Victimisation is defined as subjecting you to a detriment because your employer believes that you have done or may do a “protected act”. Protected acts are;

bringing proceedings under the Equality Act 2010 – s27(2)(a)
giving evidence or information in connection with proceedings under the Act- s27 (2)(b)
doing any other thing for the purposes of or in connection with the Act – s27(2)(c)
making an allegation (whether or not express) that your employer or another person has contravened the Act – s27(2)(d)
seeking or making a relevant pay disclosure, or obtaining information in a relevant pay disclosure – s77(4)

Section 77 says that no matter what your contract says, you can talk about pay with anyone if you want to find out whether there is a connection between your pay and having (or not having) a protected characteristic. These discussions are called “relevant pay disclosures”, and you should not be discriminated against because of it. Unlike direct discrimination, there is no comparator in victimisation. You just need to show that you were victimised because of a reason listed above.

Public Authorities

Section 149, is the public sector equality duty. It says that public authorities should have due regard to the need to eliminate discrimination, harassment and victimisation against transsexual people, to advance equality of opportunity and foster good relations between transsexual people and others.

Lawful Discrimination

Occupational requirements

Schedule 9 paragraph 1 allows discrimination in recruitment, opportunities for promotion, transfer or training, or dismissal where there is a an occupational requirement for the job not to be done by a Trans person. If an employer can show that a particular protected characteristic is central to a particular job, then the employer can insist that only someone who has that particular protected characteristic is suitable for the job. Your employer can only do this if its a proportionate means of achieving a legitimate aim, and there is evidence that you are a Trans person, or your employer has reasonable grounds to believe that you are a Trans person.

Chapter 13 (page 174) of the Employment Statutory Code of Practice says that any exception should be interpreted restrictively, and gives examples of when and how the exception can be applied. Where an exception allows discrimination in relation to one protected characteristic, employers must ensure that they do not discriminate in relation to other protected characteristics.

Organised Religion

Schedule 9 paragraph 2 allows an occupational requirement where employment or appointment to a personal or public office is for organised religion. The employer will need to prove that;

the employment is for the purposes of an organised religion;
the application of the requirement engages the compliance or non-conflict principle; and
the person to whom the employer applies the requirement does not meet it, or the employer has reasonable grounds for not being satisfied that the person meets it

Religion or belief

Schedule 9 paragraph 3 allows an occupational requirement where the employer has an ethos based on religion or belief and the employer can prove that;

the requirement of having a particular religion or belief is an occupational requirement;
the application of the requirement is a proportionate means of achieving a legitimate aim; and
the person does not meet the requirement, or the employer has reasonable grounds for not being satisfied that the person meets the requirement

Armed forces

Schedule 9 paragraph 4 allows the armed forces to refuse a woman or a Trans person employment or access to opportunities for promotion, transfer or training if this is a proportionate way of ensuring the combat effectiveness of the armed forces. This exception does not extend to dismissal or any other detriment.

National security

Section 192 allows discrimination where the purpose is to safeguard national security if the acts are proportionate for that purpose.

Insurance

Schedule 9 paragraph 20 allows employers to treat Trans people differently in relation to an annuity, life insurance policy, accident insurance policy or similar matter involving the assessment of risk if the different treatment is done by reference to reliable actuarial or other data and the treatment is is reasonable in all the circumstances.

Communal accommodation

The Employment statutory Code of Practice describes communal accommodation as ” ……..residential accommodation which includes dormitories or other shared sleeping accommodation which, for reasons of privacy, should be used only by persons of the same sex. It can also include shared sleeping accommodation for men and for women, ordinary sleeping accommodation and residential accommodation, all or part of which should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.”

Schedule 23 paragraph 3 allows an employer to exclude Trans people from this accommodation only if the exclusion is a proportionate means of achieving a legitimate aim. The employer must make arrangements for alternative accommodation or provide compensation for the refusal of the accommodation. The Equality Act 2010 explanatory notes suggest that such compensation may involve compensating a woman who is unable to attend a residential training course on a worksite with men-only accommodation by sending her on another course or arranging alternative accommodation. The same principle would apply in relation to a transsexual person.

Security and vetting

Certain jobs require security vetting, for example a Disclosure and Barring Service check (DBS). There is a confidential DBS process specifically for Trans applicants. You should contact the DBS sensitive applications line on 0151 676 1452 or email sensitive@dbs.gsi.gov.uk for information and advice about completing the form.