Childcare Counsel - gender reassignment, bank holiday pay

Rumour has it that a new staff member was born as a male and had gender reassignment prior to starting work at the nursery. Some of the staff are refusing to use the toilet facilities when she is in there. How should we respond?

A person may experience unlawful harassment not only where they have undergone gender reassignment, but also where it is perceived that they have. Therefore the action of the staff members could amount to harassment.

Harassment includes non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile or degrading environment for them. This includes ostracising a member of staff or refusing to use shared facilities. The nursery must show it has taken reasonable steps to prevent this.

While the junior member of staff has not made any complaint, it is important that the situation is swiftly addressed. A sensitive investigation should be undertaken to establish the facts. The nursery should consider whether disciplinary action is justified against any members of staff.

The circumstances suggest that there is a need for further training for the staff members about action that could amount to harassment.

The nursery has one part-time employee who works Wednesday to Friday. The nursery has historically paid her for bank holidays only if her normal scheduled working day falls on the bank holiday. The employee did not receive pay for the recent May Day holiday, which fell on a Monday. She has challenged this, saying that she should be paid for bank holidays. Is she correct?

Under the Part-Time Workers Regulations, a part-time worker has the right not to be treated less favourably than a comparable full-time worker on the basis of their part-time status, unless such treatment is justified on objective grounds. This includes entitlement to bank holidays.

Since most bank holidays fall on a Monday, part-time workers who do not work on a Monday will receive proportionately less paid leave when compared to their full-time colleagues. The approach of paying bank holidays only for the scheduled working days therefore gives rise to the risk of a claim.

While the part-time employee in this situation would not be entitled to be paid all bank holidays as claimed, the simplest and most legally safe approach would be to give the part-time worker pro-rata entitlement to paid bank holidays.