In recent years there has been a remarkable shift in societal attitudes towards gender identity, along with a growing openness to discuss and understand this complex subject.
The workplace is not exempt from these conversations.
Employers have a responsibility to provide a safe place of work for everybody and are under a duty not to discriminate on grounds which include gender reassignment.
Yet research carried out this year by the Chartered Institute of Personnel and Development revealed that in the previous 12 months, 55% of trans workers had experienced discrimination, physical or sexual assault in the workplace.
This is entirely unacceptable, and employers have a legal, and moral, duty to prevent this happening and take appropriate disciplinary action against those who engage in hateful speech or conduct.
At the other end of this spectrum, 2003 has seen several employment tribunal cases in which claimants have successfully argued that they were penalised by their employer for expressing their gender critical belief; that is the view that a person cannot change their sex.
The Employment Appeal Tribunal held that this is a belief capable of protection under the Equality Act 2010.
This presents a challenge for employers as balancing these (or any) competing perspectives can lead even the fairest employer into difficulties.
No hierarchy of rights
It is important for employers to remember that one protected characteristic such as religion or belief, cannot trump another, for example gender reassignment or sexual orientation.
This was shown clearly over 10 years ago when a Christian hotel owner who would only allow married couples to share a double room, refused a double room to a gay couple. Since only heterosexual marriages were legal at the time, marriage was inextricably linked to being heterosexual, so the couple succeeded in their claim for direct discrimination. The hotel owner’s suggestion that her religion justified her conduct was rejected.
Encourage a tolerance and respect
Employers can and should recognise the varied perspectives that may be held by their workforce, whilst also making it very clear that hate speech and discrimination will not be tolerated.
Freedom of speech does not mean individuals can say whatever they like, or that discriminatory words are acceptable.
That said, sometimes employees and employers will have to co-exist with those whose views they do not share.
Beliefs versus actions
An employer who is considering taking action against an employee should reflect on whether it is the employee’s belief that is a concern or if the real issue is in fact the way in which the employee is manifesting that belief.
Expressing gender critical beliefs in a hostile or transphobic way or in a public or high profile forum can justify disciplinary action, especially if there are existing workplace policies which make it clear that such proclamations are unacceptable.
An employer which imposes rules on all staff which indirectly discriminate against a particular group may be able to avoid liability by showing that its actions were a proportionate means of achieving a legitimate aim.
Ensuring a harmonious workplace, avoiding discrimination and ensuring other staff and your clients are treated with dignity and respect, will almost certainly amount to a legitimate aim, so the key issue will be proportionality.
Revisit policies and adhere to them
Employers should review their policies, particularly those regarding disciplinary, social media and IT communications, to ensure they address the organisation’s position on workers sharing their views publicly, such as on social media.
Prohibiting staff from mentioning their employer’s name on social media without specific permission can go some way toward guarding against damage to reputation.
It is best to be clear about what you would view as hate speech and harassment and also what the consequences of such behaviour may be. Employees don’t always realise that they can be personally liable for breaching the Equality Act (and that it can lead to claims for potentially unlimited compensation against them).
A consistent approach is best and if someone breaches your policies, it is important to take appropriate action.
It is crucial that staff are informed about new policies and that they read and understand them, but having policies in place is not enough on its own if you need to defend a discrimination claim.
Regular and repeated staff training is vital, and this is something our employment team can help with. Do let us know if you would like to find out more about how we can help you.