Hello X (Head of HR) and Y (Head of Legal
Thank you for sending this information on the Trans policy. I have also looked at the updated EqIA for the trans policy.
I have some reservations about the policies, and the EqIA, and I wanted to check with you both that these have been thoroughly reviewed by the legal team before a situation arises where I may have to rely on these documents. I had previous experience with a staff member where there was a possibility of an employment tribunal due to perceived disability discrimination where I had to show that I was following policies, therefore I would like to have that reassurance in this circumstance.
You will be aware of the Sandie Peggie employment tribunal which has highlighted the issue of not checking policies with legal advisers, and relying on the advice of EDI teams. Also, of not having adequate EqIAs in place. My understanding is that the issue is mainly with making single-sex spaces effectively mixed-sex by allowing access on the basis of gender identity. The EqIA notes that this will be the result of the Trans policies.
I believe that the relevant Regulations are regulations 20, 21, and 24 of the Workplace (Health, Safety, and Welfare) Regulations 1992 which state that there must be single-sex toilet and changing facilities, unless they are single, self-contained units. Most of the facilities across the organisation are not single units so should be single-sex. As an aside, even most of the 'gender-neutral' self-contained facilities do not comply as they are accessed behind a door rather than opening on to an openly accessible space.
I note the EqIA says that the impact upon the protected characteristics of sex and religion will be neutral, or have minor perceived negative impacts, and states that "In accordance with the Equality Act 2010, we will provide separate or single-sex facilities where this is a proportionate means of achieving a legitimate aim." This is confusing two different things, the 1992 Regulations do not contain the provision of a proportionate means, they are simply stated as regulations and should not be adapted.
Finally, the EHRC has sent out a letter reminding all public sector bodies of their responsibility to provide single-sex spaces.
I would appreciate a response to confirm that the Organisation's legal advisers are comfortable that the trans policy (and the EqIA) complies with the relevant regulations.