Notes on Employment Rights
August 1996
Press for Change is a political lobbying and educational organisation, which campaigns to achieve equal civil rights and liberties for all transgendered people in the U.K. through legislation and social change.
A transsexual is a person having the physical characteristics of one sex and the psychological characteristics of the other. [New Oxford Dictionary 1992]
1.00 Extract from Press for Change Statement of Aims and Objectives:
4.00 The Press for Change campaign will work towards achieving…
4.08 The right not to be refused employment, discriminated against in employment, or dismissed from employment on the grounds of wishing to have, or having undergone, gender reassignment.
4.09 The right to enter a chosen profession on the same basis as non-transsexuals.
[Please also see the full Statement as other areas may be relevant]
2.00 P versus S and Cornwall County Council
2.01 P was a transsexual woman who was offered promotion as a male, but was dismissed when she told her employers of her intention to undergo gender reassignment. The case of P v S and Cornwall County Council was brought to the European Court of Justice after an Industrial Tribunal found it could not deal with the case under British law. The case was supported by the Equal Opportunities Commission. On 30th April 1996 the Court of Justice found in favour of the plaintiff.
2.02 The Court found that there was a breach of the 1976 European Union Directive on equal treatment, which guarantees men and women the same rights. The Court heard that Article 5 precludes the dismissal of a transsexual for reasons related to gender reassignment and that the principle of equal treatment for men and women means that there should be no discrimination whatsoever on the grounds of sex. The judgement declares it illegal to discriminate in employment against a person on the grounds of their wishing to undergo or having undergone gender reassignment. The decision is binding on the British government. This particular decision covers only employees of organisations which are "emanations of the state".
2.03 However in a further case decided at Industrial Tribunal on 14th June 1996 (60989/94), which was brought against a company, the tribunal again found in favour of the plaintiff. This sets a precedent which means that the decision of P v S & CCC now applies without exception to ALL employers in the UK.
2.04 Its effect in the UK is to bring transsexual people within the remit of the Sex Discrimination Act.
2.05 The P v S & CCC judgement has yet to be tested with reference to employers such as the armed forces and the church. At least one case, concerning a woman known as "M" is being brought against the Ministry of Defence.
2.06 One matter remaining to be cleared up is whether claims may be made retrospectively with regard to discrimination suffered prior to the 1996 decisions. The Court of Justice left this open. A number of test cases are pending which we expect to resolve this question - hopefully allowing claims to be made for at least some period into the past.
3.00 How to make a complaint under the new legislation
3.01 If a transsexual person suspects discrimination against themselves they must make a complaint to an Industrial Tribunal within six weeks of the incident. They should also brief a solicitor. Any sympathetic solicitor can bring such a case, which is now a relatively straightforward case under the Sex Discrimination Act.
3.02 Reporting restrictions will be granted for Industrial Tribunals following the precedent of P v S & CCC.
3.03 If the transsexual person or their solicitor needs more specialist advice, Press for Change can offer advice from lawyers experienced in the area and can if necessary recommend solicitors.
4.00 Challenging discrimination and prejudice
4.01 As with other minority groups, transsexual people will continue to face discrimination and prejudice despite legislation. Because of this Press for Change wishes to undertake the following:
- To encourage employers specifically to include "gender identity" in their equal opportunities policies and to state that they will comply with the judgement of the European Court of Justice in the case of P versus S and Cornwall County Council.
- To encourage employers to ensure their staff are trained and informed about transsexualism and are obliged to behave in a non-discriminatory fashion. [Press for Change can provide information and training if required.]
- To encourage employers to make provision for employees undergoing gender reassignment to have paid or unpaid leave from work for specialist medical appointments and for surgery.
- To encourage Trade Unions specifically to include "gender identity" in their equal opportunities policies.
- To encourage Trade Unions to ensure their officials are trained and informed about transsexualism and the recent legal changes and are able effectively to represent transsexual members.
- To encourage employers and Trade Unions to affiliate to Press for Change.
5.00 Registering as Disabled
5.01 Press for Change does not consider that transsexual people are any less fit than anyone else to undertake paid or voluntary employment. However it is possible for transsexual people to register as disabled if they wish.
5.02 In this instance a transsexual employee may be employed under the Disability Discrimination Act.
AKW 08/96
