Advice on revised work policy

[OneStepForwardsTenStepsBack]

I’m a senior manager and have had advanced sighting of a new inclusion policy which will be rolling out in the next few weeks. I thought my employer had got their head around the Supreme Court ruling etc but this policy gives me concerns and I’d appreciate some external thoughts on some elements of it. It’s been signed off at all levels including our legal team.

It sets out the protected characteristics correctly but then says that in addition these the org “will not allow discrimination based on gender identity or expression, socio-economic background or accent”.

There’s then a fair bit of word salad before setting out the “musts” for groups of staff, including:

all: “avoid discriminatory or exclusionary language and behaviour at all times”

Managers are advised to:

”arrange informal/formal interventions where required, including facilitated discussions, mediation, counselling or changes to duties, location or reporting lines. Use the misconduct procedure if you have serious concerns.”

I would like to ask a practical question around something like the Forstater case but up to date, along the lines of GC being a protected belief, and so a female colleague telling a trans-woman they cannot use the female toilets would presumably not be exclusionary, as it has been proven in law.

Which then begs the question of how (and indeed why) they can extend the same rights to gender identity/expression, which are not protected by law but can butt up against day to day workplace activity as above.

Any other observations on this?

(and before the dolls come for me, we have female, male, gender neutral and disabled toilets available in the office, so nobody is being prevented from peeing)

As it’s at work if I were you I’d pick your battles carefully, is it something that is likely to come up that you will have to deal with, and if so would it be better to let it happen and then bring it up so it’s a concrete example?

Ask for clarification on gender identity. It is a belief and so confirm that lack of belief is also protected under the Equality Act?

I suspect this is the next line of attack against women - to try and claim that women voicing their rights and protesting the breaking of their legal protections is in itself an act of harassment - it seems to be a common agreed theme appearing. It will have to go to court for some poor woman to fight this through to the end, but I don't see it standing up. To have a legal protection you can't mention or invoke? That isn't in effect a protection at all?

Several judges have already taken apart the idea of 'you might have ideas about women's rights in your head but you may not express these out loud'. This is just another incarnation of it.

Trouble is once they launch it they will be at great pains not to change it for 3-5 years regardless. By which point it’s potentially too late.

I do have some team members at opposite ends of the scale on this issue, and some ND at play there too. So I am anticipating that there could be issues that I would be expected to navigate with team members using this policy. And I’m concerned that the interventions could lead to individuals demanding to be moved elsewhere for spurious reasons just because they want their own way.

It just feels like when any issue does arise, there’s absolutely no way I can safely deal with it.

I think I would ask, possibly in writing, if it will be the subject of disciplinary action to use pronouns that reflect the person's sex and if so how they propose to square that with the legal right to believe that people cannot change sex.

Depends how much I needed my job!

The word salad is heavy on “life experiences”…….

If it states belief as part of the protected characteristics that covers being GC and using sex based pronouns.

If you took it at face value it could simply mean don’t rule out Victoria for promotion solely based on the fact that they are a trans-woman. Similarly don’t exclude Pete cos he speaks with an Estuary English accent.

Agree. And face value would be great if that’s where it stayed. But I doubt it will: so telling Pete that he can’t express his gender identity by using the women’s changing room because he likes to wear a dress would be exclusion, would it not? Legally required but saying so could see someone accused of harrassment?

OP, some good advice on here already. A few things I'd point out:

all: “avoid discriminatory or exclusionary language and behaviour at all times”

Discriminatory language and behavior has been unlawful for some time, although I imagine "behavior" would be more likely to be determined by internal policies. The employer taking action against "behavior" would probably have to prove that it was discriminatory.

As far as I am aware, IANAL, "exclusionary language" is not a legal term. So, perhaps madey-uppy to proscribe hurty words?

"arrange informal/formal interventions where required, including facilitated discussions, mediation, counselling or changes to duties, location or reporting lines. Use the misconduct procedure if you have serious concerns.”

This is all normal management and disciplinary stuff. Misconduct would normally be escalated to HR, if I'm not mistaken. As a senior manager, I would expect you to be able to handle situations like these.

and so a female colleague telling a trans-woman they cannot use the female toilets would presumably not be exclusionary, as it has been proven in law.

Why would a female colleague be telling another colleague which toilet to use? This should be in your organization's policies, following the law. If a colleague was not using the correct toilet, I would mention it to a manager (which is you). Then you can get HR involved and organization's legal dept. if necessary.

Which then begs the question of how (and indeed why) they can extend the same rights to gender identity/expression, which are not protected by law

I don't understand this question. The same rights as what?

we have female, male, gender neutral and disabled toilets available in the office,

Then, your office is covered, and in line with the law.

As @Wishesandhorses says: I suspect this is the next line of attack against women - to try and claim that women voicing their rights and protesting the breaking of their legal protections is in itself an act of harassment - it seems to be a common agreed theme appearing.

Yes, many organizations will attempt to get around the law this way.

But, I'm not really sure what problems you are anticipating, or what you feel you might have to "voice" such that it becomes a problem. The only way anything could potentially manifest as a problem would be around pronouns. Are you worried about pronoun usage?

so telling Pete that he can’t express his gender identity by using the women’s changing room because he likes to wear a dress would be exclusion, would it not? Legally required but saying so could see someone accused of harrassment?

As a manager, you tell the males to use the toilets/ changing room for males, or use the gender neutral toilets/ changing rooms. If they cause a fuss or refuse, you get HR involved, and they are required to follow the law, and so is Pete. Where would the harrassment come in, if HR are the ones telling him?

”arrange informal/formal interventions where required, including facilitated discussions, mediation, counselling or changes to duties, location or reporting lines. Use the misconduct procedure if you have serious concerns.”

Counselling for whom? Does this mean anyone who ends up on the wrong side of a complaint will be sent for 're-education'?

They're leaving them wide open to every grievance activist on the payroll, it'll just be like that one from the ET, Tinkerbell, they'll be dealing with nonstop complaints over the tiniest things that some snowflake with make into 'literal genocide'.

If nothing else you should ask questions about how much all the suing that's likely to happen is going to cost them, that might focus them on reality.

For senior managers, "counselling " is normally a catch-all phrase for sitting down with someone and talking. It's a less formal way of saying " coaching" or at least that's how I've always understood it. I doubt it means actual counselling (you'd need a trained counsellor for that) or re-education.

HR don’t do any telling of anything. It’s all on managers (but we get very little support on how to practically manage anything safely). It’s common knowledge that you can do everything right and get to the final stages of a process and HR/legal will refuse to let you cross the line (eg dismissals)). It’s way too biased towards staff.

In a practical sense, there have been restrictions put on our ability to move people around, agree flexible working, change roles and management chains, but now this policy suggests we can do this at the first sniff of a complaint from someone. They’ve recently cracked down on in office attendance so some will see this as a way to get their own way on WFH (on the “location” element).

We have trained councillors in house who are employed by the company.

That’s exactly how I read it.

and so a female colleague telling a trans-woman they cannot use the female toilets would presumably not be exclusionary, as it has been proven in law.
Why would a female colleague be telling another colleague which toilet to use? This should be in your organization's policies, following the law. If a colleague was not using the correct toilet, I would mention it to a manager (which is you). Then you can get HR involved and organization's legal dept. if necessary.

So women shouldn’t address it if/when it happens in the moment? Pete walks in stroking his beard and Mary tells him he’s in the wrong toilets and suddenly she’s up for wrongspeak?

Which then begs the question of how (and indeed why) they can extend the same rights to gender identity/expression, which are not protected by law
I don't understand this question. The same rights as what?

In this policy they are adding gender identity and expression to the protected characteristics and giving them equal billing.

we have female, male, gender neutral and disabled toilets available in the office,
Then, your office is covered, and in line with the law.

But not if it allows them to be used incorrectly

Well, OP, if you have a useless HR department who are not going to follow the law and tell employees that they have to use the toilets and changing rooms that correspond to their biological sex, or use the mix-sex equivalent, then you have bigger problems than this new policy.

It's up to you how you proceed, but I anticipate possible huge problems for you just mediating with no backup between two potentially diametrically-opposed employees, and endless rounds of "discussions " about why Pete cannot use the ladies toilets. And never getting any work done if Pete digs his heels in.

If there's anyone more senior to you (do you have a line manager?), I would dump this in their lap every single time it happens, and then go home. You'll have to manage up, consistently and ferociously. Make it someone else's problem.

If this doesn't work, start looking for a job in an organization that understands and complies with the law.

Good luck.

Just say you have concerns how this could backfire on them, collect information from the threads re Tinkerbell's ET, point out how that organisation bent over backward to accommodate him and it still wasn't enough. That he ended up on the sick for 6 months and he still decided to take them to the tribunal. Get them to focus on the downside of 'inclusion'.

So women shouldn’t address it if/when it happens in the moment? Pete walks in stroking his beard and Mary tells him he’s in the wrong toilets and suddenly she’s up for wrongspeak?

No they shouldn't. It's above their pay grade to risk their jobs over this. They should tell their manager. As a senior manager, you should already know this, and be prepared to step in and manage. That's what you get paid for, as a senior manager.

In this policy they are adding gender identity and expression to the protected characteristics and giving them equal billing.

Well, that's not in line with the law, so I would tell HR and legal that, but you've already said that HR are useless.

But not if it allows them to be used incorrectly

See above, This is a problem for HR, legal, and senior managers to deal with, if they don't want to be sued. If they don't force the toilets and changing rooms to be separated and used on a biological-sex basis ONLY, they are breaking the law.

OP, I'm surprised that you don't already know all this, if you are, as you say, a senior manager. This stuff is management 101. Have written policies, have written disciplinary procedures. Ensure all your staff are aware of, and have read, the policies and procedures. Manage your staff according to the law, deal with issues as they arise, anticipate issues if you can, and use those policies, procedures, and the law to guide you in your management of staff. Everyone has to stick to the policies and follow the law, or it can be a disciplinary matter. Ensure all the staff know this.

I'm sorry you don't appear to have an effective HR department. A lot of places don't. It will make everything harder for your organization in the long run, and they'll probably end up being sued by someone eventually.

Again, good luck.

Are there any places with an effective HR department?

Very good point!
Occasionally. I have come across a few, but it's mainly a few very professional HR people who keep it afloat.

Well, they'll find out when they get taken to court.

I have to say, these are not the responses I expected.

And you’re rather minimising the impact on managers like me when the court cases come……….

And where the policy isn’t aligned with the law, should I manage to the policy or the law, because I can’t do both!

Not minimizing anything. I'm telling you what is likely to happen if your organization continues along this vein. If it becomes too much for you in your job, as is the case with all of us, you change your situation within your job, or you find yourself another job. That's not minimizing. That's just life.

Again, I'm surprised you got as far as "senior manager" without understanding that reality.

And where the policy isn’t aligned with the law, should I manage to the policy or the law, because I can’t do both!

You do sound a bit out of your depth.

Would you rather lose your job for refusing to support an unlawful policy and then sue your employer for constructive dismissal, or be taken to court because you broke the law? If those were my only two options, I know which one I'd choose.

I suggest you discuss this with some of your network contacts. You won't be the only one in this position. As you're a senior manager, you will have lots of contacts and networks.

I don't know what else you expect us to say? It's your job. We've told you what the law is. You'll have to work with that.