Recently society has experienced a shift towards greater understanding and acceptance of gender fluidity and the needs of trans and non-binary individuals. Some businesses have accepted and celebrated this shift; others have struggled with the concepts. This could result in trans and non-binary individuals not wanting to discuss their needs openly with their employers. According to a UK report published by TotalJobs in 2021, 65% of 400 trans employees surveyed were not out at work (up from 52% in 2016).1 It is important for UK employers to take note of this shift and take steps to support trans and non-binary people. In addition to the positive consequences of support for individual employees, and consequential benefits such as improved staff retention, this can result in other benefits for businesses. Inclusivity and diverse management can strengthen workplace culture, increase creativity and lead to improved financial outcomes for businesses. Additionally, failure to challenge discrimination and foster an inclusive workplace can result in legal claims and reputational damage to the employer.
"67% of millennial and generation z employees value diversity when considering employment opportunities." – Bonusly
In the case of Taylor v Jaguar Land Rover Limited,2 heard before the Employment Tribunal in late 2020, the Tribunal considered the treatment of non-binary people in the workplace. The case concerned Rose Taylor, an engineer at Jaguar Land Rover. In 2017, she came out to her employer as transgender and genderfluid and began wearing women's clothing to work. She faced serious challenges after coming out in her workplace, which ultimately led to her leaving the company.
The Tribunal found that Ms Taylor had suffered harassment, direct discrimination and victimisation because of gender reassignment under the Equality Act 2010, and that she was constructively unfairly dismissed.
The Tribunal criticised Jaguar Land Rover for a wide range of its actions. These included advising Ms Taylor to use the disabled toilets, failing to respond to inappropriate comments made by colleagues (such as referring to Ms Taylor as "it" and asking "are you going to have your bits chopped off?"), failing to train staff, particularly managers, and failing to have adequate equality policies in place.
The Tribunal was particularly critical of the fact that, although all Jaguar Land Rover's witnesses believed that the company had an Equal Opportunities Policy, none of them could recall ever having seen it. This case revealed systemic failings in Jaguar Land Rover's approach and identified steps employers should be taking to ensure that no employees are facing discrimination or harassment at work.
Jaguar Land Rover agreed to a number of measures following the hearing. These included appointing a member of its board as a Diversity and Inclusion Champion and commissioning a report by a recognised diversity organisation to investigate diversity and inclusion throughout Jaguar Land Rover. This report was to set out the steps required for Jaguar Land Rover to become a 'standard setting organisation' in terms of diversity and inclusion.
The case also dealt with a novel legal issue for the first time. The Tribunal concluded that the protected characteristic of 'gender reassignment' in the Equality Act 2010 could extended to gender fluid and non-binary individuals and that in this particular case, Ms Taylor was protected. The Employment Tribunal does not set binding precedent for other employment tribunals or the English courts more broadly, and other cases may come to different conclusions on this point or on the facts. Nonetheless, employers should take care not to rely on narrow definitions, and should consider proactively how they can create an inclusive environment.
It is important for employers to consider diversity and inclusion as a part of their wider HR and people strategy, and to include diversity as a central component. The following are some steps employers may take to support trans inclusivity in the workplace: Policies
It is important not only to have diversity and inclusion and bullying and harassment policies, but also to ensure that employees are aware of them and that they are fully implemented. Such policies should also be subject to regular review to ensure that they are fit for purpose.
"Corporations identified as more diverse and inclusive are 35% more likely to outperform their competitors." – McKinsey
Workplaces should have policies on trans inclusion and transitioning at work, although employers should recognise that each transition is unique, and the approach taken for each employee should address their own particular needs. It is equally important to ensure that existing policies are inclusive, for example ensuring that leave and family policies do not use language that excludes trans employees, such as only using gendered language.
Employees, and in particular managers, should have regular diversity and inclusion training. Failing to update training at least every 12-18 months could result in the training going stale, and poor practices creeping in. In another recent case the Employment Appeal Tribunal (whose decisions are binding on employment tribunals) found that an employer who had allowed diversity and inclusion training to become stale could not rely on it to avoid a finding that it was liable for discriminatory conduct by its employees. In addition, training that provides opportunities to hear from trans people about their experiences can increase the effectiveness of the policies that are in place.
Employers might also consider the impact of other workplace benefits. For example, employees may need to take leave in order to transition. Employers should be clear on the options for taking leave, and policies on paid leave should be broadly consistent with other periods of non-statutory leave offered by the employer.
Employers may also want to consider what support any private health insurance scheme offers to trans employees.
Networks and resource groups
At Jaguar Land Rover, Ms Taylor was responsible for setting up an employee resource group. There was evidence that colleagues were reaching out to her for support and appreciated her work. LGBTQ+ networks (and workplace champions) are a great way to foster peer to peer support in the workplace and attract LGBTQ+ talent. It is important to consider how these groups are resourced and funded so they don't become a burden on interested and passionate individuals. In addition to backing from HR and management, businesses could consider, providing resources to support diversity such as budget for activities or allowing employees to spend part of their contracted hours on equality and inclusion initiatives (with corresponding adjustments to targets).
A diverse workforce is good for business and performance, so it is well worth investing in. In order to foster an inclusive workplace, employers need to be proactive and to embrace the positive advantages of fostering inclusivity, rather than adopting a reactive approach by waiting for an employee to raise a complaint or identify something that has already become an issue.
2.  9 WLUK 200.
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