Sexual orientation and gender reassignment

There are circumstances where sexual orientation and gender reassignment can give rise to sickness absence. The protections separately available to both protected characteristics under the Equality Act 2010 may have a role to play.

Stress caused by homophobia in the workplace can and does drive some workers into sickness absence. In a case heard in 2012, Mr Bennett, an openly gay solicitor, came across an offensive memo tucked inside an old archived file which described him as “batty boy” — a term used here to describe overtly gay men — and suggested he was passing work to his “batty boy mate”.

After finding the note, the claimant went off sick and lodged a grievance. An apology was offered but the claimant brought a successful tribunal claim on the basis that he had suffered a detriment because of his sexual orientation. It was successful. The employer appealed but the EAT upheld the complaint (Bivonas LLP & Ors v Bennett UKEAT/0254/11).

In an earlier case in 2007, Mitchell v The Vincent Group, the claimant was dismissed after being off sick with depression, following homophobic comments by his manager (who was also his father) who had reduced his hours after he had “come out”. The tribunal awarded damages of £28,890 including £10,000 for injury to feelings.

Harassment is a common problem for lesbian, gay, bisexual and transgender (LGBT) people and employment tribunals have regularly made substantial awards where such treatment has been encountered.

In the case of gender reassignment, someone intending to undergo a medical transition to their new gender may require substantial time off work in order to undergo the treatment. Someone in this position has the right to be treated in the same way as anyone absent from work for reasons of sickness or injury. Unions should view this as a starting point for negotiating sufficient time off for the process.