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Thank you for attending our webinar "Employment Law Updates: What you missed in 2020 and what to expect in 2021". During the session, some really good questions were asked that we thought we should address.
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1. What is the best approach if an employee is asking their colleagues if they have been jabbed and although there is no formal complaint, you are hearing through the grapevine that some employees are feeling uncomfortable about this and under pressure to disclose their vaccination status as “no comment” implies that have not been vaccinated. There has been no explicit harassment against those without a vaccine but of course this could arise later.
I would suggest that you issue a communication to all staff (e.g. via a memo/email) including the following points:
COVID vaccinations are not mandatory but are a matter of personal choice for each individual. This personal choice should be respected.
- Equally, it is up to staff whether they wish to share their decision regarding vaccination and/or vaccination status.
- As such, you would ask that people refrain from enquiring about colleagues’ vaccination status, as this may make people feel uncomfortable.
Alternatively, you could speak informally to the individual(s) who has (or have) been asking colleagues about vaccination status (assuming you know who they are) and ask them to stop, based on the above. However, as it may be unclear who has been discussing this, a global communication might be preferable in the first instance.
If you then discover that an individual is disregarding what you have asked, this would probably constitute a failure to follow a reasonable management instruction. This would then warrant an informal discussion with the individual (assuming that such a discussion has not already taken place) and then possible a formal disciplinary procedure.
2. Are employers to be encouraged to introduce a Covid vaccine policy…based on encouragement and support, seeking the right advice etc.
It is helpful for employers either to introduce a vaccine policy or to issue some formal messaging or communication about this. Such a policy/communication may include the following points:
You are happy to offer paid time off to attend a vaccination appointment.
- If people feel unwell afterwards, they should speak to their manager/HR regarding any time off or support required.
- COVID vaccinations are not mandatory but are a matter of personal choice for each individual. This personal choice should be respected. Equally, it is up to staff whether they wish to share their decision regarding vaccination and/or vaccination status, so you would ask that people refrain from enquiring about colleagues’ vaccination status, as this may make people feel uncomfortable.
If you have (or intend to introduce at some stage) a no jab, no job policy, you may prefer to omit the final bullet point.
3. Quite a few clients I have visited have all unisex toilets. Are you saying this is unlawful?
No, it is not unlawful to provide unisex toilets. The issue arises where the toilet allocation is separated into single sex facilities only (i.e. ‘male’ and ‘female’ allocated toilets), where a trans person would essentially be forced to choose between them. The Workplace (Health, Safety and Welfare) Regulations 1992 regulations require “separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside” (our emphasis).
For more insight, the practical problems associated with toilet (and by analogy changing room) facilities was initially addressed by the Court of Appeal in Croft v Royal Mail Group which concerned an employee’s use of their employer’s toilet facilities in 1998 and thus pre-dates the EqA 2010. The Court of Appeal confirmed the EAT’s decision that the employer had not discriminated on the grounds of sex by not allowing the employee (a pre-operative transsexual in the then terminology used by the Court) to use the female toilets. The Court of Appeal held that in regard to less favourable treatment in terms of gender reassignment it does not follow that for toilet facilities all transsexual individuals are to be entitled immediately to be treated as members of the sex they identify with, and thus a formerly male employee cannot by presenting as female necessarily and immediately assert the right to use female toilets. However, it was acknowledged that the permanent refusal of the choice of toilets to someone presenting as a woman could be an act of discrimination even if that person has not undergone the final surgical intervention, and the judgement as to when a transsexual becomes the ‘other’ gender and is entitled to the same facilities as the ‘other’ gender is one which will depend ‘on all the circumstances’ including the stage of treatment reached, how the employee presents and the views of other employees.
Croft v Royal Mail Group indicates that short term practical arrangements regarding toilet and changing room facilities may have to be made to immediately accommodate a transgender individual, but that an employer may then need to reassess the facilities it provides or allows. An employer’s ability to redesign, for example, its toilet facilities to be gender-neutral will be one of the ‘circumstances’ a tribunal is likely to take into account. Where an employer provides gender-neutral toilets and changing rooms as well as gender-specific facilities, a transgender person should not be forced to use only the gender-neutral facilities. Nor should a transgender person be expected to use only those facilities meant for disabled people. A transgender employee may however prefer to use gender-neutral facilities if available, perhaps during the transition period.
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These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.