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)

I don't think it is necessarily a problem that they also want to avoid unfair discrimination based on gender identity/expression or accent or socio-economic background. Just because Fred now calls himself Freda (gender identity) and likes wearing a dress (gender expression) doesn't mean he should be treated less favourably than Hamish or Hannah who both wear jeans and a T-shirt. But of course Fred/Freda is still a man and must still be expected to use male/gender neutral toilets and not take up a place on a development scheme for women. So whether or not the additions are problematic partly depends on how watertight the introduction is about respecting the actual legal protected characteristics (as clarified by the Supreme Court...).

In terms of the 'no exclusionary language', could you get at your point by asking first of all whether it's possible to clarify the sort of things that are covered by that term because it is a bit ambiguous and potentially open to misinterpretation/abuse?

Good luck though - it is miserable working somewhere with limp HR.

This policy appears to be designed to create a never-ending series of ETs that your employer will lose. You are a senior manager. Arrange a meeting with the policy author and the policy sponsor and quietly and calmly walk through the policy and simply ask "who could take us to an ET and would they win?" for every paragraph.

You do sound a bit out of your depth.

You sound as though you might have missed the point of talking things through on Mumsnet.

Having thought this through, and depending on who might get annoyed by it and how that would affect my job and how difficult it would be to move jobs, I think I would produce a document taking the problematic parts of the policy and describing a scenario where it will cause problems and the possible results.

Pete using the women's loo to affirm his femininity and Jane breaking the policy by complaining.

Pete insisting on being referred to as "she" and Jane refusing to do that.

Etc.

Good luck!

No, I know exactly what I was doing. And you would understand that if you had "thought this through" a bit more. Use your imagination.

I know you enjoy arguing with posters just for the sake of it, because I've seen a lot of your posts. But, this one really isn't worth the effort. Really.

Do you get it now?

The main problem with the document is that it is too vague, and meaning must be read into it, which is not possible for every scenario (they probably think this is a good thing. It's not.).

Discrimination and exclusion are sometimes legal, or mandatory, even. What they are really talking about is unjustifiable less favourable treatment, and you should read it that way. That eliminates from consideration any superficially less favourable treatment that is mandated by regulations such as WR1992, because the regulation is the justification.

They've added their own 'in-house' protected characteristics, of SES, gender non-conformity, and accent. Micromanagement, but not the worst idea ever, I suppose.

On the belief front, they want to curtail objectionable manifestations of GC belief but don't want to say what that might look like. Understandable: there is case law, but they'd prefer to handle it on a case-by-case basis.

You need to hold their feet to the fire by asking for explicit guidance. For example, is there a sanction for misgendering, and if so, how strict?

Others will disagree, but I'm not wholly against in-house anti-misgendering rules. Causing psychological distress is unfavourable treatment that might not be outweighed by the belief-based rights of the person doing the misgendering. Compare with a Christian employee politely but constantly reminding gay colleagues that they are hell-bound.

In any case: their company, their rules. And your immediate problem is not whether they are correct, but whether they are clear.

In any case: their company, their rules. And your immediate problem is not whether they are correct, but whether they are clear.

The policy needs to be both: correct meaning in compliance with the law, and clear meaning explicit enough, perhaps with examples, so that everyone knows where they stand on specific issues, e.g. on pronoun usage.

I see no issue with adding additional protections, e.g. on accent, but they can't add things that contradict the law.

"avoid discriminatory or exclusionary language and behaviour at all times" is too vague and unclear if they have added in protections for gender identity and expression without explicitly considering how these protections interact with gender critical belief being legally protected.

@StandingDeskDisco

Indeed. They're avoiding saying what the rules are, because that would enable them to be challenged. OP should aim to reveal the 'hidden' rules – but they won't necessarily all be worth challenging.

There are less contentious issues that could create a whole load of noise under this as well.

The organisation is increasing its office attendance requirements and will be enforcing these with stronger sanctions than I have seen on literally anything else. They won’t mandate specific working days or hours but are encouraging teams to set “anchor days”. The theory is sound but the practicalities when some people are part time or have school runs etc to do makes this somewhat tricky. We already get a lot of complaints about certain meetings taking place on certain days because not everyone works them.

So let’s say a manager asks their team of 20 to identify a weekly or fortnightly anchor day. Due to part time/compressed hours arrangements there is not a single day of the week where everyone is in. The majority vote for Wednesday, but a couple of staff are unable to travel in on a Weds (and we don’t have a policy where we can compel that) due to childcare so would not be exclusionary behaviour to set the anchor day as a Weds? The wording in this policy suggests it could be, because they don’t define what exclusionary behaviour is.

The company holds a summer staff social event on a Thursday. Again, not everyone can attend - is this exclusionary behaviour?

The org does have something of a “complaint culture” so I do anticipate that the rigidity around office attendance and this policy together will tie managers up in knots with people arguing they are being excluded from things.

Causing psychological distress is unfavourable treatment that might not be outweighed by the belief-based rights of the person doing the misgendering.

I see what you're saying, but this is the (intentional on the part of GI) sledgehammer to crack a nut.

If someone is constantly in someone's face repeating true but upsetting information - 'fat' for example - that's plain old harassment, the workplace situation already fully covers one member of staff being an arse to another one, and rightfully so. It is no more acceptable for someone to follow a man with a gender identity around chanting 'man man man' than it is to follow someone around chanting 'fat fat fat'. It's covered. It's there. The person doing it is doing basic bullying and harassment and the book should get thrown at them.

The aim here is to control women. Because if she needs to say 'I need a single sex women's space (as I'm allowed in law) for my access and inclusion, and Susan keeps walking into it', she has to be able to say 'and the problem is that we all know in reality Susan is a man'. Otherwise she's been silenced and she cannot sustain her rights. (Which is the point, isn't it?)

Equally, a woman should not have to enable a man who may be behaving in a harassing or dominating way not allowing her a single sex space, by participating in what she sees is an overt controlling/coercive act by enforcing that she has to call him Susan and use his chosen pronouns when every inch of her is screaming that she's just helping him bully and oppress her. And there are plenty of women who have been put in this exact position.

In court, it's been repeated multiple times. Misgendering is not illegal. It cannot be. Nor is it acceptable or non discriminatory to require that women do not speak their beliefs - the whole 'you can think it but never say it' nonsense is exactly that. Nonsense. It would be an easy thing for HR and a court if need be to figure out, was this woman actually harassing or bullying this man on the grounds of his gender identity (any cases of this come up so far? No? I don't remember those court cases) or whether a man is controlling, harassing and bullying her. (LOTS of those court cases. Frequent ones.)

So no. These silly little add ons are no more necessary than the conversion practice bill, and are equally merely about handing more control to men to crack on enjoying coercively making women's life a misery while gagging the woman so she can't resist the abuse.

Maybe run with this as your first example of why 'exclusionary behaviour/language' is too vague and needs to be tightened up to avoid a spiral into complaints galore.

If I were still in a corporate situation as a senior manager I'd probably do this:

Say 'many thanks for the sight of this policy/procedure. We know that this is all a very complicated situation and so I'd like to propose stress testing it with some complicated situations so that the company is protected against potential legal cases. Is there a chance that one of the legal team, one of HR and a few managers bring some 'worst case situations' into a room together and just make sure that we have every angle covered? Both for ourselves and also any sensitive situations that arise, do the staff know how they would bring things to the attention of management before it gets to a bad situation? I'm happy to bring a few scenarios that came to mind upon first reading'.

Perfect.

@Wishesandhorses

Misgendering and single-sex services are unrelated issues, legally.

And, what is illegal, and what an employer can legitimately set as in-house rules, are not the exact same issue either.

This area is not yet well-explored, and it probably won't be easy to explore until institutions start getting some of the basics right, like policing single-sex services. The Jennifer Melle case is the most relevant, but different factually, and was settled.

If the policy is that you have an anchor day and as a group you agree that it is e.g. Wednesdays. Can't you give notice to your part time and compressed hours people that they will need to change their working days or hours to accommodate this?

I'm part time and I have arranged my hours to include being in the office on certain days due to business needs and maintaining contact with the wider team. I will also rearrange other commitments to be in the office on other days if that's required and I am given sufficient notice. In a couple of weeks we are having a department wide 'away day' on a day i'm not normally in the office but I have rearranged childcare and office days to be there.

My line manager appreciates my flexibility and in return I get some good will and some flexibility when I need it around child sickness, parents evening or child performances etc.

Do team members have particular working days or hours written into their contracts or are they just on a %FTE, with working hours agreed with line managers?

Regarding that policy, and no exclusionary language. I'd ask for some specific examples to be added or for there to be extra guidance or training just for managers to help them to navigate this. That might help you seem positive and proactive to senior leaders, whilst still addressing your misgivings about the policy.

I do actually think there can be issues with going beyond the law when it comes to gender identity particularly. E.g. for non binary identities it isn't totally clear that this is covered under the protected characteristic of gender reassignment but it would be covered under gender identity. I think there's the possibility of getting into legal difficulties there. There's a legal feminist blog on going beyond the law "To Boldly Go – Why “going beyond the law” risks unlawful discrimination" that might be worth you reading.

Thanks for recent comments. Some staff do have contractual terms about specific working days so it wouldn’t be a case of giving them notice that it would need to change to it out a full consultation on changing terms. We have been informally advised as managers not to consider this an option unless staff themselves offer.

I think your core problem is that they have added and weighted extra protected characteristics. This causes problems for the equalities act, which is very finely balanced. The tweaking/interpretation of the act by Stonewall et al, which unbalanced this was the main cause of a ridiculous number of employment tribunals. The policy that you described similarly unbalances the act.

I would want to put this view to the authors of this policy and ask if they have formally agreed it with the lawyers (with sign off) and have they budgeted for the increase in cases from:

1. the (usually) women who are being discriminated against by it.
2. trans people, who will believe they have greater rights than they do.

I would conclude that ANY tampering with the equalities act (and this policy does) is a very courageous thing to do, given the recent legislation and headwind.

No because that’s the law. Informing somebody politely of the law is not harassment. Pete can express his gender identity within the bounds of the law.

I agree it's going to take a lot more long, slow, painful law to get this sorted out for women, but my point was, perhaps badly made, that the attempt to make misgendering forbidden is the gag by which women are prevented from defending their right to a single sex space. It's a lever leading to the real dispute at hand, which is many companies so heartily disliking liking women having rights too.

The two are not linked in law, but I'd take a wild guess from the emerging pattern across multiple incidents that they are absolutely and intentionally being tactically linked by transactivists.