Numerous laws are in place to protect citizens from discrimination, but when faced with workplace discrimination due to your gender identity, you may find yourself feeling uncertain about your legal avenues. If you are looking to better understand your options for addressing anti-trans discrimination in the United Kingdom workplace, we are here to offer assistance and walk you through the process.
Equality Act 2010
In the United Kingdom, there exist various laws aimed at safeguarding workers from workplace discrimination. The most pertinent among these is the Equality Act 2010, a piece of legislation designed to promote equality and prohibit discrimination across different facets of life, including employment, education, and the delivery of goods and services. This act serves to consolidate and streamline existing anti-discrimination statutes while introducing protections based on nine distinct characteristics. Additionally, it places responsibilities on organisations to actively prevent discrimination and foster a climate of equal opportunities.
The nine protected characteristics are:
- Sexual orientation
- Gender reassignment
- Marriage or civil partnership
- Pregnancy or maternity leave
- Religion or belief
“A person has the protected characteristic of gender reassignment if the person is 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.”
The Equality and Human Rights Commission (EHRC) explains this definition further, stating that ‘you do not need to have undergone medical treatment or surgery to change from your birth sex to your preferred gender’ to be protected by the act. The term ‘gender reassignment’ is a broad term that includes the experiences of trans people. This means that you also have the right to freedom from transphobic discrimination at work as your identity is protected under the Equality Act.
How does discrimination show up in the workplace?
If you are facing workplace discrimination due to your gender identity, it is important for you to be aware that there are avenues available to you.
We spoke with Danae, the CEO and founder of Valla, a free, legal platform for people who want to resolve an employment issue but cannot afford a law firm. In our talk, Danae provides insight into what you can do when experiencing discrimination at work.
Please note that the answers Danae is providing come from a legal leverage perspective. You should not have to lose your job because you’re complaining about being discriminated against as this would be illegal. Unfortunately, employers might do it regardless. Danae’s answers are helpful when you want to take legal steps to build a strong legal case if you are being discriminated against at work because you are trans or gender diverse.
Danae: The Equality Act has nine protected characteristics, and one of those is ‘gender reassignment’. The protected characteristic is one important aspect to understand. The other part is the specific type of discrimination. There are six different types of discrimination, and there are four different types that apply to trans and non-binary people:
- Direct discrimination: is what people typically imagine when they hear discrimination at work, for example: ‘I am not going to give that person this promotion because they are trans’. That is called direct discrimination.
- Indirect discrimination: is where a policy or a practice of a company indirectly affects a whole group of people who share the same protected characteristic. For example: A company says that it is their policy that they do not include pronouns in their communications. Then, one could argue that this is indirectly affecting that whole group of people.
- Harassment: is bullying because of a protected characteristic at work, such as creating a degrading and hostile environment that makes people feel humiliated. If you can link the bullying to the protected characteristic that’s when it becomes harassment.
- Victimisation: states that if you speak up at work about discrimination potentially happening, it doesn’t have to be about you, if your company punishes you in some way for having made that act, then that’s called victimisation.
What is useful to understand, is that harassment and victimisation support allies as well as people with protected characteristics. You can be dealing with a degrading, hostile environment even if you are not the one being harassed. Equally, allies can speak up and be protected under victimisation.
What legal steps can you take when experiencing discrimination in the workplace because you are trans or non-binary?
Danae: Step one is to label specifically what is happening to you. The reason why that’s so powerful is that when you are speaking up about an issue at work, you want to be going by the book, you want to be building up strong leverage with your employer to indicate to them that you understand the wider context of what’s happening, and you understand your options.
When you experience discrimination, you should raise it informally with the company. Then, raise it formally as a grievance if it’s not been dealt with. Your employer is required to follow the ACAS* code of practice for grievances as a minimum. Every employee in the UK has the right to raise an informal and then a formal grievance. Your employer must investigate that grievance, must give you an outcome and you must have the right to appeal that decision. Even if it feels like it’s not worth trying, it is worth going through that grievance process first.
*ACAS (Advisory, Conciliation and Arbitration Service) is a UK service that helps employers and employees improve workplace relationships. They give free advice on workplace rights. Even before you start any of the aforementioned legal steps, you can always call ACAS for advice.
What do you do next?
Danae: If the grievance process doesn’t resolve the issue, you have three months minus one day* from the original incident that happened, to start ACAS early conciliation. Say, for example, the incident happened on August 1st, you might raise a grievance about that over August and September, and you still might not have heard an outcome from the employer. However, you still have time to start ACAS early conciliation. Even if the grievance hasn’t finished yet, you want to start early conciliation if you’re getting close to the deadline.
*This deadline refers to contacting ACAS to make a claim, which could be directly filing a claim with a tribunal or going through early conciliation. While most people will go through early conciliation, some may choose to go straight to tribunal.
Early conciliation is an escalation of the problem because you are going to ACAS and you are saying, ‘Look my employer and I can’t work this out, can you get involved and get a resolution to this?’. While ACAS is working on that, they are going to contact your employer and they’re going to try and help you negotiate something, in the meantime your clock to go to tribunal is paused. Even if you do it the day before the deadline, the clock pauses. The clock only un-pauses when the process doesn’t work, and ACAS comes back to you.
At that point, you typically have about one month to make a tribunal claim for it. You can withdraw claims at all times. But if you want to maintain legal leverage over your employers, … then you would want to keep the process going. When you make your claim, you lay out those things that you labelled, such as direct discrimination on the basis of gender reassignment, and then you move into the court process.
Is there a specific time frame for raising a complaint?
You can make your informal claim even after a year of the incident. Your employer will still be obligated to follow through with the grievance procedure. The three months minus one day from the original incident deadline is only applicable if you want to make a claim through ACAS, which could be either early conciliation or going directly to a tribunal. However, there are some exceptions.
Danae: There is a provision for something called a ‘continuing act of discrimination’. Say the first incident happens but it kept carrying on in different ways, you could make the argument to the tribunal that you want to include all those things even if they are out of time because they were part of one big type of discrimination. The three-month deadline is for an easy life, but it is not immutable. There are ways to ask for an extension if needed.
Do you have any advice for trans and non-binary people experiencing discrimination at work?
Danae: My number one tip is to keep contemporaneous notes. By contemporaneous I mean ‘in the moment’. When something happens, write down immediately who, what, where, when. Who said what, what happened, where did it happen and when, to the minute if possible, did it happen? Keep track of when you took that note. Your account of what happened counts as evidence in a tribunal. The court will take it even more seriously if you have recorded the evidence as quickly as you could.
Make sure you know what your options are. You’re not imagining it and it’s not okay. Think about what it is that you want. Do you want to leave with some kind of settlement? Do you want the person who is doing this to you to be investigated? Think about what you want and then go from there in terms of your actions. Every option might not be the best option depending on what you want. Nevertheless, you have every right to want the discrimination to stop.
How can our readers who require your help get in touch with you?
Danae: Our website is Valla.uk. We have a free action toolkit. If you’re in the early stages of this and you don’t know what your options are, then we have written a guide that will help people work through that. If you are post-grievance and you’ve been going back and forth with your employer and you don’t know if it’s worth it, we have a service that helps evaluate your case. Our platform is completely free to use.
If you have more questions and would like to discuss your options further with Danae, the easiest way to get in touch with her is to email: firstname.lastname@example.org. Valla’s team will try their best to support you. Check out their website, Twitter and LinkedIn for more information.