Many trans people decide to undergo gender reassignment (medical and surgical treatment to alter the body) and for many people this involves surgery. If you are undergoing gender reassignment surgery, you may need to take time off work for medical appointments, the surgery, and recovery. Recovery from gender reassignment surgery can take up to 12 weeks.
What am I entitled to?
Legally, your employer must treat you just the same as they would if you were taking time off work for another type of medical reason, such as sickness or injury. If they treat you less favourably, it could be discrimination. The Equality Act 2010 states that it is unlawful to discriminate against people because they have undergone, are undergoing or intend to undergo gender reassignment. See discrimination at work for more information.
For example, if your employer recorded all of your absences following your gender reassignment surgery but didn’t record another colleague’s absences after they broke a limb, this could be deemed unlawful discrimination, because your employer is treating the two absences differently. Similarly, if your employer didn’t give you time off for medical appointments related to your gender reassignment surgery, but gave you time off for a medical appointment related to something else, this could also be classed as discrimination.
Your employer should pay you any sick pay that you are entitled to, as time off related to gender reassignment must be treated the same as any other medical leave.
However, you may need to take time off for reasons that are not medical, such as for counselling. Again, your employer shouldn’t treat you less favourably than they would if you were off for another reason. If your employer can show they have acted reasonably, then it’s not unlawful discrimination. So, if they refuse your request for an afternoon’s annual leave to attend a counselling session, but do so only because there isn’t anyone to cover your shift, this is less likely to be discrimination.
Going beyond the legal entitlement
At Community, we believe employers should follow good practice which goes beyond the law.
Although, at a minimum, you must get the same sick leave and pay for your gender reassignment as you would if you were ill or injured, best practice is for employers to offer distinct paid time for gender reassignment. This is so it doesn’t impact the amount of sick leave you have overall, as gender reassignment can mean you need to take more time off than usual. We think your time off should be recorded separately from sickness absence, and not considered as part of your employer’s absence management processes.
Though your employer must at a legal minimum pay statutory sick pay/company sick pay as they would do for any sickness absence, we think good employers should offer full pay.
When you return to work after gender reassignment surgery, you may need a temporary reduction of hours or duties. Your employer should understand this.
Many employers have developed policies and procedures to support trans people who need time off — Asos have recently offered 6 weeks’ paid leave to people undergoing gender reassignment surgery.
If you’re a union rep, you could speak to your employer about the policies they have in place to support trans colleagues.
If you are interested in becoming a Community equalities rep to support trans colleagues in the workplace, find out more here.
Remember that we are here to support you to get the support you need from your employer.
See LGBT+ rights at work about the support that employers should give trans people, and the law around it.
If you need help or advice, please contact us at firstname.lastname@example.org or on 0800 389 6332.