New Guidelines For Treating Transgender Employees

The issue of treatment towards transgender employees has long been a controversial one in employment law. Until recently there was no defining notion of how transgender concerns should be handled by employers, but now, as transgender issues are becoming ever more vocal in UK society, government guidance is reflecting this.

Nicky Morgan, the UK Minister for Women and Equalities, has revealed the release of two new legal documents that provide employer guidelines on how transgender employees should be treated. The first document is known as ‘The recruitment and retention of transgender staff’, and the second is named ‘Providing services for transgender customers‘

Working together these two guides are intended to give businesses the information they need to assist with the recruitment and training of transgender employees, as well as provide helpful advice regarding common problems that transgender employees face.

Ms Morgan also spoke of the prejudice individuals experience in UK workplaces: “Many transgender people still face discrimination in the workplace, as well as in their day-to-day lives. The guidance for employers and service providers we are publishing today is an important step towards helping improve knowledge and understanding to ensure all members of our society can live their lives free from discrimination”

Every complicated aspect of gender is explored across the two reports which define gender reassignment as “when a person takes steps to alter the outward expression of their gender so that it is better aligns with sense of who they are”.

Employers are also advised that it will not always be possible to identify an individual’s gender simply by their appearance and voice.

To better understand the content of the new documents, here is a brief overview of each report.


Providing Services For Transgender Customers

The guidelines that comprise the Providing Services For Transgender Customers guide is intended to “set the atmosphere and culture” for transgender employees in the workplace. This cultural assistance is broad and ranges from helping with physical comfort at work to appropriate verbal and written forms of identification for employees.

The guide explains the rationale for such changes: “Our different backgrounds, experience and perspectives mean we think about issues in different ways, see new solutions and opportunities to improve”.

Several renowned UK employers have already expressed support for the new guidelines, including British supermarkets like Sainsburys and Asda as well as international restaurants like MacDonalds. This guide also highlights the problems discrimination against individuals can have for the function of a workforce: “If barriers exist to the recruitment and retention of transgender staff, employers miss out on this potential.”

The report explains that companies which adopt policies supporting transgender lifestyles will be far less likely to receive public complaints and will also make legal action against businesses by transgender people less likely.

Employers are urged to ensure transgender employees are protected from members of the public as well as fellow staff if the job they perform involves customer service. Businesses that find employees experiencing hateful actions by the public have a duty to prevent these actions as much as possible, with legal assistance if necessary.


The Recruitment and Recognition of Transgender Staff

The second report known as “The Recruitment and Recognition of Transgender Staff” is intended to guarantee that transgender employees already in employment receive the best possible assistance with their concerns. Employers are advised to conduct regular checks in order to ensure that their business is meeting the needs of all transgender employees

Interestingly the report does not suggest that changes be made for the convenience of a transgender employee if the individual and/or employer feel the change will have the effect of isolating the employee from their colleagues and potentially hinder how they are perceived at work. The guide urges fair treatment without the introduction of changes that anticipate issues of offence which may harm career opportunities. The guide sums this up by stating that employers should “be mindful of issues that can arise, but don’t expect there to be problems”.

Lock v British Gas Trading: The Case That Could Change Holiday Pay

The recent tribunal case of Lock v British Gas Trading involved British Gas employee Mr Lock appealing a 2014 ECJ decision that denied his commission payments to be part of his holiday pay. Mr Lock’s successful reversal of the ECJ ruling may have significant changes to the entire UK legislation of whether commission should count as holiday pay for employees of all industry sectors.

Mr Lock’s legal team evoked the Working Time Regulations 1998 to argue that his overall holiday pay should consist of his basic salary along with additional sums that represent the likely volume of commission he would have generated during this period of leave had he of been working.

The appeal was successful and the money was awarded to Mr Lock in May 2015. However, British Gas has appealed the decision on grounds that guaranteed overtime should never be granted as part of holiday pay.

The British Gas legal team claimed: “After considering the decision of the tribunal very carefully, we decided to appeal against it […] we continue to talk to the trade unions about how best to approach holiday pay in the future.”

Should the appeal prove successful at tribunal next year it could result in a major change to UK employment law that would see UK law stand in contrast to the rules of EU legislation. If so, the UK government will be under immense expectation to make permanent changes to its current pay laws for all cases.

But before such changes can be implemented there are several other legal qualms to consider, such as whether forms of additional payment like bonuses and voluntary overtime should also be taken into consideration when judging holiday pay. A required reference period for calculating these payments will also need to be set.

However, if the Employment Appeal Tribunal (EAT) rules in favour of British Gas this can be considered further confirmation that EU regulation simply does not reflect British law and that new legislation needs introducing. Any new ruling on commission pay will only be allowed to take into account cases that are launched from the date of the law change. Cases already facing tribunal or that have been recently dismissed will not be catered for under this new law but could be eligible for review at a later date.

Should British Gas’s appeal be unsuccessful, the EAT ruling will remain in favour of Mr Lock and a second tribunal will also be required in order to determine how to compensate him and take into account how long the referencing period of his case should be.

Furthermore, if the appeal is rejected there will likely be a large number of other employees coming forward to voice similar concerns, which may begin legal measures that could take years to be completely heard.