Discrepancy between policies

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I have a disability and my company policy towards medical appts is clear; they are taken using flexi leave and the time made up afterwards. While this irritates me on occasions when appts run really late (last one cost me 4hrs in flexi) it's always been fair as the policy is applied across the board and anyone wanting a med appt uses flexi leave.

I recently saw our policy on employees undergoing gender reassignment and that policy states that all appt relating to an individuals transition are granted as paid time off.

I have scheduled a meeting with HR to discuss this as it seems clearly discriminatory to me but I was wondering if anyone could point me in the direction of legislation/case law that could support my assertion that this opens up the company to legal risk of a successful discrimination case being bought.

Alternatively, if anyone thinks I'm over interpreting it and it's clearly fair, please tell me. I am worried that my emotion on the subject of disability rights could be clouding my judgement on this and I'd really not rather mark my card if I'm wrong

That is very discriminatory.

I'd have thought it's a slam dunk in terms of discrimination with the potential for some significant compensation if the organisation doubles down on treating one protected characteristic differently to others in terms of time off for medical appointments? But I'm not a lawyer.
There are some very informed legal people on here who hopefully will be able to advise.

I would have thought it was overtly discrimination in terms of employment rights.

Not sure how helpful they would be but the EHRC lists an advice line you can ring Equality Advisory and Support Service (EASS)

https://www.equalityhumanrights.com/equality

Is there a union or staff association at your work place?

Just had a thought.

As you have already arranged a meeting with HR (good for you!), was wondering if it might be better to start off with a more puzzled approach. ie why are some staff getting more rights than others and so find out this way what their thinking is.

If they cant explain just say that must mean that as from now all of us can claim for paid time off.

If they come up with some strange arguement about why one group should bet more rights this might help point you in the direction of who to get advice from.

Rather arrived armed with guidance notes or whatever.

But obviously you know better how your work place and HR usually deal with things.

Just put forward as a suggestion.

Thank you @IwantToRetire and I'll admit that that's the approach that I took with the senior I spoke to on Friday. Sadly the know me too well and it failed 😀. They are the one who has asked me to try and get legal stuff/case law before I meet with HR as they think it's a better approach if I take the legal risk route. Our industry is very pro trans rights and anything that could be deemed transphobic will see me in trouble whereas the "you're holding legal risk for these reasons" approach may go across better

I wonder if sending a message to sex matters might get you a steer in the right direction, or perhaps Michael Foran via twitter or something? I’m not suggesting asking for full on legal advice, but a bit of a hint in the right direction might help?

And well done by the way for challenging this! It does seem unfair.

I’m really sorry - this sounds awful and I hope they back down without you having to go through the stress of holding them to account. I’m sick of people on this board and beyond having to be heroes. I just want organisations to treat them with decency. Sending love and support - sorry, nothing more useful to add.

I was just reading about this on Acas the other day. Hold on and I'll find the page.

I wonder if leave isn't necessarily related to disability., so they havent classed it as realting to that, whereas time off for 'reassignment' is a specific thing that is classed as related to a pc, if that makes sense?

I'd found it surprising, too, tbh. And I agree it seems discriminatory.

Here's the page:

https://www.acas.org.uk/gender-reassignment-discrimination/preventing-discrimination#:~:text=An%20employee%20can%20transition%20without,hormone%20treatment

And here's the equivalent page for disability - leave isn't mentioned.

www.acas.org.uk/disability-discrimination

Although ... for something to be discriminatory the comparator is another person without that pc.

So, it's not comparing pcs with one another.

So it's whether you've been treated less favourably than someone without the pc of disability. Rather than how someone with the pc of gender reassignment.

I'm not sure if I'm explaining well, it's complex.and I'm not a lawyer. I suggest calling ACAS. Or perhaps EHRC.

You're entitled to reasonable adjustments, which may include flexibility wrt leave:
https://www.acas.org.uk/supporting-disabled-people/disability-related-absence

Thank you Arabella, you have articulated what my niggle on the issue is - as gender reassignment is not a medical condition, they could argue that it does not need to be viewed in the same way as a medical absence, even if the appt is to see a hospital consultant.
Those links are incredibly helpful, thank you.

Yes, although as ever its that weird contradiction in terms that it's not a medical condition or mental health condition, yet:

'Being able to have relevant surgery can be important for an employee's physical and mental health.'

The claim I suppose is that gender reassignment leave is to enable people to be 'true to themselves' or equivalent meaningless waffle .

Although I don't see why this is the one instance where people get paid leave just because it'll make them feel better.

It'd fucking well make most of us feel happier.

But that aside, I don't know you'll get far comparing an adjustment made for.one pc with an adjustment made for another, because the comparator is someone without the pc, not with a different one.

I'm not saying it's fair, btw, just thats my own very rudimentary and amateur understanding of how the EA works.

And on this page about time off for appointments it does refer to both disability and gender re-assignment, but doesn't indicate one should have more than the other.
https://www.acas.org.uk/time-off-for-medical-appointments

Both are protected characteristics under the EA.

It’s not a slam dunk.

In fact I’d expect HR to push back hard against any legal line of argument. They will tell you that you’re not being treated this way as a disabled person but rather as a non-trans person, and the latter is legal. Gender reassignment is not symmetrical in UK equalities law - only people who have that characteristic are protected, not the people who don’t have it. So no non-trans employee can claim discrimination for being treated worse than a trans person because that’s legal (similarly disability - non-disabled people can’t claim discrimination for being treated worse than a disabled person).

Your response would be that you are indeed being discriminated against as a disabled person. When some non-disabled employees require medical treatment related to their protected characteristics (it only needs to be some employees, it doesn’t have to be all), they get time off. But when you as a disabled person need it, you don’t. If your employer offers women time off for IVF etc you could point to that as well.

Your employer at that point could simply reject this reasoning and refer you back to the previous point.

Or, they could move on to proportionate and legitimate. Employers are allowed to treat employees with protected characteristics worse provided it’s a proportionate means to a legitimate aim (think a non-kosher slaughterhouse not hiring someone who won’t touch non-kosher meat).

If they attempt to explain why their policy is proportionate and legitimate, they may make your case for you, ie “trans people are the most excluded and marginalised” which will allow you to explain that in most workplaces disabled people are the most excluded and marginalised - so their failure to provide similar support to disabled people is not proportionate.

It’s a complex and potentially interesting question, and if you don’t get satisfaction from HR you’ll likely need to take it to a top specialist lawyer.

I think this is just not the point.

The point is the employer has a policy for staff who need to attend medical appointments which presumably has been in place for years.

Now they are saying that this rule applies to everyone but those being treatment for gender re-assignment.

This is unequal treatment of staff.

And even if they were to say well it is covered by those with protected characteristics, in this case both are in this category. Disability and gender re-assignment.

If the employer is now saying this one group should have better terms and commission then they should send round a circular to staff explaining this change in terms and conditions of work for them.

I just think that HR shouldn’t be introducing divisive policies and by giving priority to those undergoing gender reassignment over and above disabled individuals needing time off for medical appointments it leaves a bad taste. But I also don’t think it means it’s a discriminatory policy. I do think that you should be asking “what about me”.

You might be better taking the tack that EA2010 allows reasonable adjustments for people with a disability and it would be reasonable to allow medical appointments relating to a disability to be treated the same as those for gender reassignment medical appointments and anti natal appointments.

Point out that a person going through gender reassignment or pregnancy would still have to use flexi for medical appointments for other reasons e.g. knee injury. It would be consistent and equitable to allow credit for medical appointments relating to a protected characteristic.

This is a good idea, OP.