Business Law Articles
Russell Advocaten B.V.
The Dutch rail company NS starts its announcements with “Dear traveller” and recently, HEMA launched gender neutral children’s clothes. Employers will have to deal with gender neutrality too. After all, they are obliged to provide the best possible working conditions. How can you, as an employer create a work environment where everybody feels welcome and free? What efforts do you, as an employer, have to make?
Working conditions policy
Employers are legally required to take care of the safety and health of their employees. This includes a policy that focuses on the best possible working conditions. Thus, employers have to provide protective clothing for radiation or contamination in the workplace or hearing protection if there is a lot of noise at work. In addition, when setting up a workplace, employers have to take into account the personality of their employees. This entails, for instance taking into account work-related stress of employees, but also a person’s gender identity, amongst which transsexualism and intersexuality.
The government has no clear guidelines on how employers have to create “the best possible workspace”. It is up to employers and employees to implement that together.
Gender neutral workspace
Generally speaking, a person that feels well is more productive at work. Therefore, it is in the interest of employers to provide pleasant working conditions for everyone. Unfortunately, there is not always understanding for transgender persons and persons who do not want to identify with a specific gender, which might even lead to bullying.
Employers are well-advised to include general rules in the employee handbook providing a safe work climate for everyone. In addition, practical matters can also be dealt with in an employee handbook, such as guidelines regarding gender-neutral toilets. However, employers are not required to do so on their own initiative.
Employees can submit a request with a member of the works council for gender-neutral toilets. If the works council agrees with the request, it may decide to submit a request with the entrepreneur. The entrepreneur is obliged to consult with the works council. Employees can of course also raise this issue informally with their employers, managers or the confidential adviser.
Continued payment of wages in the event of gender reassignment
Employers are not (yet) required to grant transition leave to employees undergoing gender reassignment, this means employers do not have to continue to pay wages if an employee is absent due to gender reassignment. However, civil servants in the municipality of Amsterdam are entitled to this kind of leave. Many organisations, such as Transgender Netwerk Nederland (TNN), advocate for a statutory transition leave.
There is no statutory transition leave (yet), but that does not mean employees undergoing gender reassignment have no other rights. For instance, an employee undergoing surgery with a view to transition is entitled to continued payment of wages. A requirement is that it does not regard a cosmetic procedure but that it is medically necessary. A medical procedure is involved if the transition process has already taken some time and gender reassignment surgery is a necessary procedure of this process. As an employer, keep this in mind. As it regards a medical issue, it is wise to involve your occupational health and safety service or company doctor in the process.
Happy employees are productive employees. Therefore, you, as an employer are well-advised to create pleasant workspaces for all employees. Draft an employee handbook and appoint a management employee or confidential adviser to monitor employee needs and respond to them.
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