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How to handle changing ideas about gender in the workplace

In recent years there has been a marked increase in requests from employees to recognise changes of gender and non-binary gender identities, including through the use of different gender pronouns such as ‘they/them’.

Equally, there has been pushback from others against any suggestion that gender is any more complex than a straightforward male-female binary.

So, what should you do as an employer when faced with an issue that is not only politically fraught but also where passions run high?

Here, Amanda Hyam, a Senior Associate who specialises in employment law, explains what employers need to know about gender-neutral terminology in the workplace:

What the law says

The law doesn’t have anything directly to say about the use of gender pronouns in the workplace.

Sex, sexual orientation, and gender reassignment are all protected characteristics under the Equality Act, which means that the Employment Tribunal can find against any employers that discriminate against employees on those bases.

The reference to gender reassignment in the Equality Act had generally been interpreted as relating to actual or intended physiological gender reassignment.

However, a 2017 Employment Tribunal case concerning a gender-fluid employee found against Jaguar Land Rover, with the judge saying that being non-binary or gender-fluid was protected by the Equality Act. An important caveat here is that Employment Tribunal findings do not set precedents that bind other courts.

Despite the relative lack of direct prescription in the law around how employers deal with matters relating to gender, any conduct from an employer that amounts to bullying or harassment, or a failure to protect an employee from bullying or harassment could lead to a Tribunal case being brought.

The key is good communication

On top of the ever-present need for clear and easy-to-understand employment policies, effective employee engagement is key and will allow you to understand their needs.

That means asking them what they need and listening to the answers.

For some workplaces, it might be appropriate to list everyone’s pronouns on email signatures, for others, it might be to do so only where people might be mistaken as to the correct ones to use.

In general, you should try to accommodate the needs of employees as far as you can within the commercial constraints of your business.

For further information or advice on employment law matters for employers, please get in touch with us.