Absence from work because of gender reassignment
The law which says you mustn’t be discriminated against is called the Equality Act 2010 - it sets out all the different types of unlawful discrimination and who they apply to. If you're being discriminated against, you can take action through an employment tribunal.
If you need to take time off work because of gender reassignment, you're protected against discrimination by your employer.
Read this page to find out more about gender reassignment discrimination if you're absent from work.
You may have been treated unfairly because of gender reassignment in other situations at work or outside work.
The Equality Act says it can also be unlawful discrimination if someone treats you unfairly in other ways as well because of gender reassignment.
What's meant by gender reassignment?
You’re protected against discrimination if your absence from work is related somehow to your gender reassignment.
Gender reassignment is when you transition from one gender to another. You’re protected against discrimination if:
- you're planning to transition gender
- you're in the process of transitioning gender
- you've transitioned gender already
Your absence may be because you’re attending counselling sessions or because you’ve got medical appointments. Your gender reassignment may involve medical intervention, but it doesn’t have to. It’s about you wanting to live your life in a gender different from that assigned at birth, whether this involves medical intervention or not.
What must your employer not do?
Absence due to sickness or injury
If you need to take time off in relation to your gender reassignment, the Equality Act says it’s unlawful for your employer to treat you worse or less favourably than they would if you were absent because of sickness or injury. To decide whether your employer's discriminated against you, you need to look at how your employer treats or would treat someone who was absent because of sickness or injury.
You want to have gender reassignment surgery in the near future and have told your employer about it. This means that you’ll need to take some time off for medical appointments and also for surgery. Your employer decides to record all these absences. However, when another employee broke her leg skiing your employer didn’t record her absences.
This may well be unlawful discrimination because your employer is treating your absence differently than your colleague's absence due to her injury.
Absence for other reasons to do with your gender reassignment
If you need to take time off in relation to your gender reassignment, your employer also mustn't treat you less favourably than they would if you were to take time off for reasons other than sickness. This may also be unlawful discrimination under the Equality Act. However, if your employer can show they acted reasonably, it's not unlawful discrimination.
To decide whether you’ve been discriminated against you need to look at how your employer would treat you if your absence had nothing to do with gender reassignment.
You tell your employer you want to transition gender and ask them if you can take an afternoon off as annual leave to attend counselling. Your employer refuses. There are enough staff members on duty that day to cover for your absence so your employer is probably being unreasonable. This means you could have a claim for unlawful discrimination.
But if there hadn't been enough staff members on duty, it may have been reasonable to refuse your request. If this was the case, it's less likely to be discrimination.
Other useful information
Equality Advisory Support Service (EASS)
If you have experienced discrimination, you can get help from the EASS discrimination helpline.
Equality and Human Rights Commission (EHRC)
- You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com