The Equality Act 2010 covers all forms of discrimination in the workplace, including selection for a job, training, promotion, work practices, dismissal or any other disadvantage such as harassment because of a ‘Protected Characteristic’.
The Equality Act 2010 prohibits discrimination because of a Protected Characteristic. Gender reassignment is one of the Protected Characteristics.
What is Gender Reassignment?
Gender reassignment arises where an employee is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning his or her sex by changing physiological or other attributes of sex. However, an employee who simply chooses to cross-dress (without any question of change of gender) will not be protected from discrimination.
What is Gender Reassignment Discrimination?
This discrimination occurs when someone is treated in a certain way either because of, or for a reason related to gender reassignment. It can also occur where an employer does something which places you at a disadvantage because of gender reassignment. So, a woman making the transition to being a man and a man making the transition to being a woman both share this protected characteristic.
Who is protected?
The Act covers all employment and applies to apprentices, employees and the self-employed working under a contract personally to do work. Ex-employees can also in some circumstances make a claim against a former employer.
Who is liable?
The employer is generally liable for acts of discrimination; however, individual employees may also be liable.
Exceptions: When gender reassignment discrimination may be lawful
In some exceptional circumstances discrimination can be lawful. Examples include occupational requirements:
An employer of a women’s triathlon event decide to exclude a trans woman because they think her strength would give her an unfair advantage. However, the employer would have to show that this was the only way it could make the event fair for everyone.
Bringing a Claim
If you feel you have been discriminated against, you can bring a claim to an Employment Tribunal. Claims must be brought within three months (less one day) of the act complained of subject to any extension of time granted by correct use of ACAS Early Conciliation.
Where discrimination has occurred over a period of time then the claim must be brought within three months (less one day) of the last act in a series of interconnected, linked acts subject to any extension of time granted by correct use of ACAS Early Conciliation.
It’s important in most cases for Claimants to submit a written grievance to their employer complaining of the discrimination. A failure to do so could result in any compensation being reduced by up to 25%.
Where a Tribunal finds that a claim is well founded, it can order the employer to pay compensation for financial losses and injury to feelings. The Tribunal can also make a recommendation that the employer takes specified steps within a specified time to remove or reduce the adverse effects of the discrimination on the Claimant.
How do I prove my case?
Establishing that discrimination occurred is not straightforward. Sufficient evidence must be provided to enable a Tribunal to conclude it is more likely than not that an employer discriminated against the worker.
There will need to be some factual basis upon which the Tribunal can make its findings. It therefore helps if the claimant can produce any relevant letters or documents. It is useful if the employee makes a note of the key incidents and the dates on which they took place.
If you feel that you may have been discriminated against, why not complete our discrimination questionnaire and we will contact you to discuss further. Alternatively, call us on 0333 016 4239 or email us at firstname.lastname@example.org