My staff are refusing to work with a transsexual colleague. How do I handle it?

Gareth McCay writes:

It is firstly important to establish all of the facts in terms of how this has come to light, has there been a formal complaint from the transsexual employee (“the Employee”), what the staff’s issues are, whether or not the staff have ceased, or are refusing to carry out, work etc. The best way of establishing the full facts is to meet with managers, supervisors, any trade union representative or employee representative and the Employee.

Once you have been appraised of the background to this dispute it would be prudent to meet with the Employee to discuss how they would like this matter dealt with moving forward. Often in sensitive situations like this the aggrieved employee prefers things to be dealt with informally in a low key manner perhaps in fear of reprisals or exacerbating an already tense working environment. If the Employee wants no further action taken then it is important to document this in the minutes of meeting and have the minutes signed by the Employee. This should provide a level of protection for your business should matters escalate or in the event that the Employee resigns and attempts to claim constructive dismissal.

If the Employee has made a complaint and is content for the matter to be dealt with formally, it is important that you act quite quickly. If your staff’s refusal to work with the employee is purely on the grounds of the employee being a transsexual then their actions are likely to constitute harassment. The Sex Discrimination (Gender Re-Assignment) Regulations (Northern Ireland) 1999 amended the Sex Discrimination (Northern Ireland) Order 1976 to include a new article 4A which prohibits harassment carried out on the grounds of gender re-assignment.

As a starting point you should refer to any Sexual Harassment Policy or Dignity at Work Policy that are in place. It is important that these policies are implemented in an effort to negate/mitigate potential liability. To avoid liability, an employer must be able to show that it took all steps that were reasonably practicable to prevent the bullying and harassment taking place. In the case of Caspersz v Ministry of Defence UKEAT/0599/05/LA the EAT held that the existence of a Dignity at Work Policy together with evidence that the MOD had followed the procedures contained within the policy was sufficient to show that it had taken reasonably practicable steps to avoid liability for sexual harassment.

If there is evidence of gross misconduct, you could consider suspending the members of staff on full pay pending the outcome of a disciplinary investigation. A senior member of staff should then be appointed to carry out an independent investigation by interviewing witnesses, the employee in question and the alleged perpetrators, together with examining any other evidence. If the investigation confirms that the members of staff subjected the Employee to harassment on the grounds of gender reassignment the matter should then be referred to a disciplinary hearing.

Even though the bullying and harassment has been perpetrated by the staff and not by the employer directly, Article 42 of the Sex Discrimination (Northern Ireland) Order 1976 states that an employer can be held to be vicariously liable for the actions of its employees. The potential liability in relation to a claim of sex discrimination is unlimited and the legal costs associated with defending such a claim can also be high. If warranted, you could give serious consideration to dismissing all of the guilty members of staff for gross misconduct.

Regardless of whether the Employee wants matters dealt with formally or informally and in a further effort to negate/mitigate any liability, your business should also consider offering the Employee access to counselling at the business’ expense or even some paid leave whilst the matter is resolved. Furthermore, it may be prudent to invest in diversity training for all members of your staff.

If your staff have actually ceased or refused to work then it is open to you to consider their employment to have been terminated via their breach of contract. Fundamental to a contract of employment is that an employee will provide services and that the employer will provide consideration for those services. By refusing to provide labour your staff are in breach of a fundamental term of their contract of employment and this provides your business with the option of accepting, in writing, the employee’s breach of contract and bringing the contract to an immediate end. If you decide not to pursue this option, the refusal of the staff to work with the Employee could still be considered as part of any disciplinary process as it may be considered a refusal to carry out a reasonable management request.

One issue which may warrant further and detailed consideration is if your staff’s complaint is in relation to the Employee’s use of toileting facilities. This issue was considered in the case of Croft v Royal Mail Group plc [2003] IRLR where the employer prevented a pre-op male using a female toilet on the basis of an indication from female employees that they would not be happy with such an arrangement. The Court of Appeal held that the status of transsexual did not automatically entitle the employee to be treated as a woman with respect to toilet facilities. Following Croft, the onus is now on the employer to decide when the employee becomes a member of the target sex and in doing so it must take into consideration the stage the employee had reached in their treatment, the employee's own assessment and presentation and the susceptibilities of other members of the workforce.

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1045.html

This article does not constitute legal advice and in situations such as this it is important to take legal advice tailored towards the specific circumstances.