by Breda O'Malley September-03-2021 in Employment Law
There is no specific legislation in Ireland addressing the rights of an employee transitioning. However, trans employees are protected in the workplace under the Gender Recognition Act 2015 (“GRA”), the Equality Act 2004 (“EA”), the Employment Equality Acts 1998 – 2004 (“EEA”) and the Safety, Health and Welfare at Work Act 2015 (“SHWWA”).
For example, every employee has the right to a safe place of work under the SHWWA, an individual is allowed to self-determine their legal gender under the GRA, and the EEA and EA prevent discrimination on any of the nine protected grounds, which includes gender and sexual orientation.
Unlike the UK, where gender reassignment is a protected characteristic under its Equality Act, Ireland has yet to specifically address this in its legislation. However, we know from Irish and EU law, that gender discrimination is not confined to discrimination based on the sex of an individual, but also to discrimination arising from gender reassignment.
What can an Employer do?
We highlight below five HR initiatives that organisations are introducing to support more gender-inclusive and welcoming environments for trans and non-binary employees.
1. Recruitment
Ensure that each job ad, job spec and application form is gender neutral.
New employees may also be given the option to voluntarily list their pronouns as part of onboarding documentation, when commencing in a new role within the organisation.
2. Policies and Procedures
Review and update all work policies and procedures to ensure that they are gender inclusive and use gender neutral pronouns, where possible. Although gender specific language is not often used to exclude anyone, the use of it does not acknowledge the existence of those employees whose gender identity falls outside of the gender binary. Key policies in this context are the Bullying and Harassment policy, Dignity at Work policy, Dress Code policy, and Non-Discrimination policy.
e.g. Employees should contact HR about their annual leave as opposed to An employee should contact HR about his/her annual leave.
Avoid gender stereotypes in your organisation’s Dress Code Policy. If the organisation enforces a smart dress policy, this can be achieved by requiring employees to wear “everyday office wear” as opposed to requiring men to wear suits and women to wear dresses.
3. Gender Transition Policy
Introducing a Gender Transition Policy is another workplace initiative that organisations can take to create a more accepting, safe, and trans-inclusive working environment for its employees.
This policy could include the following themes: -
- A glossary of terms and terminology e.g. non-binary, gender fluid and trans. It could also highlight terms that are inappropriate/derogatory, and which should not be used;
- Who an employee should approach to discuss their transition as well as guidance for managers on how to sensitively and confidentiality support the employee throughout their transition;
- Employee’s rights, such as their right to privacy;
- Confirm that absences for the purpose of medical appointments and procedures will be treated in the same manner as any other scheduled medical procedures;
- State how the employee will be supported in their transition as well as ways in which they can inform their colleagues, the wider organisation and/or clients (if they wish). Employers should always take the lead from the employee on this and do what is right and comfortable for them;
- The use of facilities e.g. bathrooms/locker rooms; and
- Note that a clear timeline of next steps will be agreed between the employee and the company, which could include administrative changes such as change in email, key cards, name badge, email signature block and updating employee records.
4. Training
Some organisations have started by providing corporate diversity training and information to the workforce to educate and encourage awareness around the full spectrum of gender diversity and trans issues. Managers could be encouraged to be proactive in supporting and creating an inclusive and welcoming workplace. Although training is an important step, organisations should ensure that information and support is always readily available to the workforce and that employee engagement is encouraged.
5. State your pronouns
Another initiative that some organisations have introduced is encouraging employees to include pronouns in their email signature blocks or, to state their pronouns as part of employee introductions at the beginning of meetings. Neither of these initiatives should be mandatory or forced on employees. However, they are a simple and effective way to create awareness of differing gender identities, while reducing the risk of an employee being misgendered.
As the legislative framework, case law, and HR practice develops, there is no doubt that there will be on-going revised guidance and best practice for employers in this space.
As equality law experts we would be pleased to support your organisation with providing legal advice and with drafting a Gender Transition Policy or Gender Identity and Recognition Policy, please contact Breda O'Malley bomalley@hayes-solicitors.ie.
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About the Author
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.