Bates Wells recognises challenges faced by transgender employees when seeking to evidence a right to work

Our immigration team are working to persuade UK Visas and Immigration (UKVI) to close a gap in their guidance for employers who wish to employ someone that recently changed gender.

Introduction

Transgender people often face challenges when documenting their gender identity. A specific barrier has been identified by our Immigration Team in that current UKVI guidance does not provide any clarity for employers who wish to employ someone that recently changed gender and who is seeking to demonstrate their right to work. In 2018 the UK government estimated that between 200,000-500,000 identify themselves as transgender in the UK*. Clarity is urgently needed.

What are right to work checks?

The UK government expects employers to carry out right to work checks for any new employee or for an existing employee on a time bound visa, before the expiry of their visa.

The current UK guidance sets out how to carry out right to work checks. These are usually done manually or online, however UKVI have introduced temporary measures which allow virtual checks, in other words where an employee sends a document electronically and an employer confirms matters by a video call.  

Whilst UKVI have provided guidance regarding change of gender “markers” for individuals affected by the EU Settlement Scheme, there appears to be a gap for those who do not hold status under the EU settlement scheme, such as British citizens or sponsored skilled workers.

Issues in the current legal framework

Discrepancies in the documents

Employers risk breaching UKVI guidelines for not having carried out right to work check correctly and employees may not have the required documents to evidence their right to work.

If an employer employs an individual and they do not have the right to work in the UK, the employer can face a civil penalty. Therefore, it is imperative that right to work checks are done correctly.

This poses a problem for people who have changed gender yet may not have updated their passports or identity documents to reflect the change. Many national authorities will not necessarily agree to amend passports and identity documents to reflect that a person is transgender. Employers must check for consistency and if the photos provided by an individual are not consistent, or the names do not match, this can be an issue. Ultimately, the employer must reasonably satisfy themselves of the reason for any discrepancy and retain evidence of how they satisfied themselves, such as a certificate of deed poll for a name change. However, asking for such information from an employee, if not done sensitively, could give rise to employment claims.

Retention of documents

The documents provided by an individual must also fit within the UKVI’s right to work checklist. However, the checklist does not cater for individuals who have changed their gender but not yet amended their documents.

In addition, under the current guidance, employers must keep a record of every document checked for the duration of the person’s employment and for a further two years after the individual stops working for the employer.

This could present a problem for employers with transgender employees as under the Gender Recognition Act (GRA), it is an offence for a person (who has acquired protected information in an official capacity) to disclose the information to any other person, which includes as an employer or prospective employer. Therefore, employers could be caught by the GRA if they then disclose right to work documents to a UKVI official when requested.    

For employers, the risk is high. If the right to work check is not conducted in line with UKVI guidance, and the relevant documents are not retained, the employer may not have a statutory excuse against illegal working and could be found liable for a penalty if the individual is then found to be an illegal worker. However, if they do disclose this, they could be liable for penalties under the GRA.   

There are certain exceptions under the GRA, such as:

• if the individual agrees to the disclosure
• if the person who discloses the information does not know a Gender Recognition Certificate has been issued
• in accordance with an order of a court or tribunal
• for the purpose of preventing or investigating crime

However, it is not clear if disclosing documents or information for the purposes of right to work checks would be permitted under the current UKVI guidance and GRA.

What are we doing about it?

Whilst there is HMRC guidance for employers affected by the above, there isn’t anything in the UKVI guidance.

We are currently challenging the UKVI on the above points and also how important it is that the policy must be clarified.

What other issues do transgender people encounter in the immigration system?

Passports and identity documents are of course intrinsic to many immigration processes, including the validity of applications for visas and permits. It is not necessarily easy for transgender people to hold such documents which accurately reflect their gender identity. UKVI normally proceeds on the basis of the documents currently held, and this can leave transgender people incorrectly documented in the immigration system.

Bates Wells are working to identify the parts of the UK’s immigration processes which need reform to enable our transgender clients to document their lives correctly.