Published: 25th October 2024
Updated: 15th January 2025
Area: Employment

Checklist: What an employer can and cannot do

What employers can do What employers cannot do
Employers can promote the voluntary use of pronouns to foster a supportive and inclusive environment Employers cannot force employees to share their pronouns if they are uncomfortable doing so
Offer workshops or resources on the importance of using correct pronouns to help raise awareness and build understanding among staff, reducing discomfort or confusion Under the Equality Act 2010, employers cannot discriminate against employees based on gender identity or expression
Provide opportunities for employees to include pronouns in email signatures, name badges, or introductions, but this should always be optional Employers cannot single out or treat employees differently based on their pronouns or gender identity
Ensure that HR systems or forms offer options to allow employees to state their preferred pronouns

 

We’ll go through the following in this quick guide:

There is no legal requirement for workers to state their gender or preferred pronouns publicly, or any law that asks companies to make their employees choose a pronoun. Nevertheless, there is nothing to stop workers from including their preferred pronouns in email signatures should they wish to (though employees would be wise to check any Company policy around company-wide standard email signatures first before doing so).

Some businesses have started to ask employees to include their pronouns in email signatures. However, for those thinking of introducing such a policy in an effort to be more inclusive, it could have the opposite effect.

Can I refuse to use pronouns?

While encouraging employees to share their pronouns contributes to creating a supportive and inclusive workplace, sharing your pronouns remains a personal choice and should not be mandatory.

Why do people use pronouns instead of gender?

Pronouns provide the opportunity to identify where an individual is on the gender-spectrum. Choosing to disclose your pronouns tells others that you will not assume their gender and contributes towards creating an open and inclusive workplace culture.

Why is it important to respect all genders?

Respecting all genders is crucial to fostering an inclusive and equitable environment where individuals feel valued and accepted, regardless of their gender identity. It helps to break down harmful stereotypes and promotes diversity, leading to greater understanding, collaboration, and wellbeing in both the workplace.

Can you force employees to put pronouns on emails?

No, employees cannot be forced to disclose their pronouns. While it may be encouraged as part of an inclusive workplace policy, mandating it could infringe on personal choice. Employees should feel comfortable with how they represent themselves without being compelled to disclose aspects of their identity.

Is it necessary to use pronouns in a CV?

Including pronouns on a CV is not necessary, but it can be a useful way to clarify your preferred way of being addressed from the outset. Some job seekers opt to include them to signal inclusivity and prevent any assumptions about their gender identity, but it remains a personal decision.

Is it illegal for an employer to ask an employee’s gender?

It is not illegal for an employer to ask about an employee’s gender in certain contexts, such as for monitoring diversity, equal opportunities, or ensuring compliance with employment laws. However, such questions should be handled carefully to avoid discrimination and respect privacy.

In an interview setting, if you are asked questions that relate to a protected characteristic under the Equality Act 2010, (age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation), and you are then treated differently as a result, then you are entitled to make a claim of unlawful discrimination.

Which pronouns are expected to be used?

The pronouns to be used are those that the individual identifies with. Common pronouns include “he/him,” “she/her,” and “they/them,” but others may be used depending on personal preference. The best practice is to ask politely and respect the pronouns someone shares with you.

Gender identity issues in the workplace

Gender identity is a divisive issue with strong and polarised views on each side of the debate, as can be seen from the UK government’s recent blocking of the Gender Recognition Reform (Scotland) Bill.

Dealing with gender identity in the workplace can be a delicate issue and one where employers have to consider the needs of, and legal protection afforded to, two different groups of individuals:

  • those protected from discrimination under the Equality Act 2010 (EqA) on the basis of gender reassignment; and
  • those with gender-critical beliefs.

Gender-critical beliefs 

Gender-critical beliefs include the belief that someone’s sex – i.e. whether they are male or female – is biological and unchangeable and that sex is distinct from gender-identity. Whether gender-critical beliefs are protected under the EqA has been the subject of an increasing number of tribunal claims.

What is a protected belief?

It is unlawful to discriminate against someone because of religion or belief. A belief is defined as any religious or philosophical belief (or lack of belief) but the EqA does not define these concepts further.

However, guidance given by the Employment Appeal Tribunal (EAT) in Grainger plc v Nicholson identified five criteria, which must be met if a belief is to qualify as a philosophical belief and therefore gain protection under the EqA:

  • The belief must be genuinely held.
  • It must be a belief and not, simply, an opinion or viewpoint based on the present state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion and importance.
  • It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The decision in Forstater v CDG Europe considered whether gender-critical beliefs met these criteria.

Forstater v CDG Europe

Maya Forstater had posted several tweets and had had discussions with another member of staff where she expressed her belief that sex is immutable and not to be conflated with gender identity. Ms Forstater also expressed her opposition to the changes being made to the Gender Recognition Act 2004 (GRA) that would allow trans people to achieve legal recognition of their acquired gender based only on self-identification. As a result, her employer did not renew her contract.

Ms Forstater brought claims for discrimination and victimisation, which initially failed on the basis that her beliefs did not satisfy the fifth of the Grainger criteria.

On appeal, the EAT held that Ms Forstater’s beliefs were in fact “worthy of respect in a democratic society” and were therefore protected by the EqA.

However, importantly, the EAT also made clear that this “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” and noted that acts of harassment and discrimination against trans people in the workplace are also prohibited by the EqA.

Gender reassignment

It is also unlawful to discriminate against someone because of gender reassignment.

Section 7 of the EqA provides that:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”

The reference to ‘process’ is not limited to the medical process of reassigning one’s gender, however the individual needs to have made a concerted decision to live their life as the other gender.

The scope of protection was considered in Taylor v Jaguar Land Rover Ltd.

Taylor v Jaguar Land Rover Ltd.

The claimant, Rose Taylor, worked in Jaguar Land Rover’s plant. In 2017, the claimant informed their employer that they were transgender and self-identified as both gender fluid and non-binary. The claimant would be transitioning from male to female identity, and had not undergone any surgical reassignment. The claimant subsequently began wearing female clothes, leading to them being insulted by colleagues. When the claimant raised these concerns with HR and management, their concerns were often dismissed.

The employment tribunal held that, regardless of the fact that the claimant had not undergone any surgical reassignment, they were protected by the EqA.

Although this decision was only at tribunal level, and therefore not binding, it does indicate the potential scope of protection under the EqA.  Whether an individual is protected will be fact-specific and this will sometimes be difficult to know with any certainty. The safest option for an employer would be to assume the EqA applies and act accordingly.

Best practice for employers

Employers should take a proactive and sensitive approach to managing gender identity issues, remembering that they must not discriminate against staff either because of their gender-critical beliefs or on the basis of gender reassignment.

Difficulties could arise where employees have conflicting views over sex and gender and where, for example, one raises a grievance against the other because of gender-critical views expressed in the workplace or on social media.

The employer will need to investigate the grievance and, in deciding whether any action is appropriate, may need to distinguish between taking action because of the employee’s belief (which could fall foul of the EqA) and because of the way that the employee manifested or expressed that belief, if they have done so in an offensive way, for example.

In the latter circumstances, the employer may be able to justify taking disciplinary action against them, but it will be a fine line to tread.

As ever, prevention is better than cure and employers should set clear expectations for their staff, using the following as a starting point:

  1. Update internal policies

Employers should review and update their equal opportunities, anti-harassment and bullying policies to ensure that they are up-to-date and set out the behavioural standards required of staff. In particular, policies should highlight discrimination towards an individual’s gender (including gender reassignment) will not be tolerated, and should set out any applicable sanctions.

  1. Provide Training

Employers should provide gender recognition and diversity training to all employees across their business. The aim of such training should be to improve employees’ understanding of gender identity, as well as making them aware of acceptable terminology to use in the workplace. Training should also include how to handle any grievances, so that managers and members of HR will also have the confidence to deal with issues that arise.

  1. Encourage communication between employees

Some employees may not feel confident in having discussions relating to their gender with their managers or other colleagues at work. Employers should reassure their staff that they are able to have such conversations in a safe environment, and managers will be available to have any such discussions at the employee’s pace.

Our solicitor’s expert opinion

David Browne, one of our employment law experts, had this to say on the matter:

“Although such a request may be done with the best intentions – to address individuals with respect and courtesy in the way that they wish to be referred to – employers must be wary about asking for information from employees that could impact the way they are treated. Despite the fact that they can’t force people to disclose this kind of information, everyone should feel comfortable sharing preferred pronouns if they feel it important to do so.

“Under the law of England and Wales there are nine protected characteristics: age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, pregnancy or maternity and marriage or civil partnership. It is against the law to make an unjust or prejudicial distinction in the treatment of any individual or group because of these characteristics and that treatment is prohibited in one of four main forms.

“These are, direct discrimination (less favourable treatment because of a protected characteristic), indirect discrimination (the application of rules or arrangements which put those with a protected characteristic at a disadvantage), harassment (unwanted conduct on the basis of a protected characteristic that creates a hostile or degrading environment) and victimisation (unfair treatment of an individual because they’ve complained, or may complain, of discrimination).

“Forcing employees to reveal their pronoun preferences could leave employers open to discrimination claims, and employees feeling alienated.

“Having an inclusive workplace culture is crucial. However, singling out one group of people is a dangerous game for employers. Being open, honest and, above all else, celebrating people’s differences will no doubt go a long way to improve culture, retention and breed a workforce that looks beyond age, gender, race or the like. There is simply no need to force employees to reveal any more information than they are comfortable with.”

For advice or guidance on any other commercial or legal issues, a member of our team can walk you through everything – get in touch today.

David Browne

Partner & Head of Employment Law

Get in touch

David is the lead employment partner for the firm’s education clients and provides sector specialist advice to universities and colleges. He regularly provides clients with strategic advice on issues such as major restructures; TUPE; and trade union relations. David also undertakes a significant amount of contentious work for both education and non-education clients, including representation at employment tribunals, the EAT and the Court of Appeal.

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