It should be a truism for all that no-one should be discriminated against or harassed. That every single person deserves to be, has the right to be, treated fairly.
Over the last several years, organisations in all sectors have embedded equality, diversity and inclusion into policies and practices, particularly in relation to trans people. Guidance was absorbed, specialist trainers brought-in and changes introduced. Organisations vie with each other to achieve recognition by prominent LGBT organisations and be highly ranked in the inclusion stakes.
But what has recently emerged is that policies and practices have been built on fault-lines, along with widespread confusion about the law. It is surprising how this came about.
Official, but incorrect, guidance on the 2010 Equality Act (EA2010) was promulgated for 10 years – see AEA’s booklet ‘Equality Matters’ for further detail. That guidance was, in turn, widely disseminated by management consultancies and training agencies, including trans-focused organisations. That misguidance is now embedded in the EDI policies of leading organisations. Here’s an example from, a ‘household name’, company’s staff guidance [client confidentiality: name withheld]:
‘The law states that individuals who are making or have made a permanent change to their gender must be permitted to use the facilities designated to their acquired gender. It is a contravention of the Equality Act 2010 to force a trans person to use separate facilities.’
Such guidance is ultra vires, ie outside of the law, and thereby unlawful. It misstates the law in four ways.
- There is no mention of ‘permanent change’ in EA2010. The protected characteristic ‘gender reassignment’ is defined in Part 2, Section 7, as those ‘proposing to undergo, are undergoing or have 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.’ So, merely proposing to undergo is sufficient to be protected under the characteristic of gender reassignment.
- EA2010, Schedule 3, S31, para 28, states that exclusion of a trans person from a single-sex facility doesn’t equate to gender reassignment discrimination ‘provided it is a proportionate means to achieve a legitimate aim’.
- Inclusion in, or exclusion from, single-sex facilities provided for in EA2010 – often known as the single-sex exception – applies to service-provision. It doesn’t apply in the workplace.
- Use of the term ‘gender’ and absence of the term ‘sex’. ‘Gender’ is not an EA2010 protected characteristic – the correct term is ‘Gender reassignment’ – but ‘Sex’ is a protected characteristic.
- If the same, or similar, wording, to that in the above quoted statement, is contained in an organisation’s EDI policies, and/or embedded in an organisation’s practices, the organisation is legally exposed.
Do your EDI policies and practices reflect misguidance?
To further complicate matters, judgement in a recent legal case has radically moved the ground. It means that organisations’ policies and practices are even more likely to be on the wrong side of the law, with consequent increased exposure to legal challenge.
The Forstater v CGD judgement ruled that ‘gender critical’ beliefs are protected in law. The ruling also asserted the protection of ‘gender theory’ beliefs and also ‘lack of belief’.
As a protected characteristic, belief or lack of belief can be openly expressed provided not done so in a discriminatory manner or in a way that amounts to harassment. Clearly, this has implications for workplace relations. Ramifications of the judgement also extend to areas of policy. Use of workplace toilets and changing rooms, for instance, are brought into scope and may become sites of contention.
In order to protect against potential litigation, it would be prudent for organisations’ policies and practices to be independently reviewed.
AEA policy appraisal
In strictest confidence, AEA will:
~ scrutinise your EDI policies and practices for legal exposure and other risks
~ provide a comprehensive, objective, non-ideological and impartial written report
~ highlight elements to be changed in order to bring policies and practices within the law
~ suggest mitigatory measures for other types of risk.
Contact AEA – we are ready to help you!
‘Constructive information to take back to colleagues’.
Lucy. HR, Birmingham
Thanks for the very informative and comprehensive session on equality law today. Lots to think about in terms of how we balance everyone’s needs.
‘It was a pleasure to work with Ann Sinnott/AEA and obtain some much-needed advice on an issue that has become both sensitive and complex in recent years. Ann took the time to get to know the business and the issues that affected us, she was thoughtful and asked insightful questions throughout our work together to really understand the reality of our situation. She took the time to understand the previous advice we had received from other parties and she set us on the right track by explaining clearly and informatively where we could run into trouble and how we should prioritise remedying the situation.
Ann provided a detailed, informative, insightful, thorough and well referenced report. She left no stone unturned and tackled the difficult issues head-on. Her expert knowledge of the Equality Act 2010 was clear and she helped to dispel many myths that currently exist about this, whilst confidently explaining what exemptions apply and how these should be used. Ann provided balanced recommendations in a non-judgemental and helpful way and steered us into a more informed position.
Overall, a brilliant experience from someone who knows her subject. Furthermore, Ann is professional, good humoured and a pleasure to work with.’
Diversity and fairness are assets
A reputation of inclusiveness and fairness makes it easier to recruit and retain the best staff. Diversity builds social capital with stakeholders and clients. It also better reflects the wider population and is the right thing to do.
However, diversity does introduce a potential for conflicts of interest, which has to be understood and managed fairly.
For organisations with a public sector equality duty (PSED), there is a requirement in the 2010 Equality Act to ‘foster good relations between those of a protected characteristic and those not’.
Non-public organisation do not have a PSED requirement but fostering good relations between protected characteristics is clearly in the interests of all organisations.
Allowing employees and or clients/service-users a say on planned change – especially change that is sensitive and likely to be controversial – is an effective way to manage potential conflict. It also embeds trust in senior management and is an effective route to workplace harmony and for client/service-user confidence.
However, there must also be confidence in the process itself.
There can be fear of recrimination from co-workers and/or management, as well as concern for possible negative repercussions on career prospects. These fears can deter employees from voicing their honest opinion.
Clearly that defeats the very point of consulting and will skew consultation results. Any underlying discord remains unaddressed, which can sour work relations with a potential negative impact on productivity.
An internal consultation outsourced to an external agency can bolster employee-confidence, not only in the consultation process itself but also in your organisation’s impartiality.
It will also serve to shield your organisation’s operations and reputation should adverse reactions arise.
AEA offers an impartial anonymised consultation mechanism to manage and facilitate consultation with your employees.