If an applicant has changed gender and name but hasn’t changed their ID documentation, do you have to ask for additional documentation to confirm the change?
Whether you can request additional documentation will depend on what you are using the documents for.
In regards to a situation where you have requested the documentation for a standard identity check, then where the name is different on the ID document to the name on their other documents you can request an additional document that verifies their name change. This does not need to be a formal Gender Recognition Certificate; some form of deed poll certificate would be sufficient.
You could also rely on a form of photo identity with their new name on it to verify the identity of the person. Employment businesses have an obligation to check identity under the Conduct of Employment Agencies and Employment Businesses Regulations 2003, but there are no specific requirements as to how these checks should be carried out.
From a practical point of view it would be advisable to inform the candidate of the fact that you are required to confirm their identity and that for that reason, you require documentation to address the change of name, as would be the case for all candidates (e.g. if a candidate was using a different name after marriage or divorce, they would need to ensure that their identity documents were consistent with the name they wish to use).
In terms of right to work checks then you should follow the Home Office guidance regarding right to work checks. Note the guidance contained in the Frequently Asked Questions About the Illegal Working Penalty Scheme which states:
Q77 Does the requirement to show a combination of National Insurance number and a birth certificate discriminate against British Citizens who have been or are in the process of gender transitioning? The requirement may cause problems for a person in this situation.
A: We accept that being given a National Insurance number and a second document, such as a full birth certificate, may present problems for an individual who is undergoing, or who have completed the process of gender transitioning. However, it is possible for a UK national to obtain a UK passport with their new identity, and checking this single document will provide your excuse.
You should only be requesting additional documents where the candidate is trying to register in a different name than the one that is on their ID. Where the candidate is not attempting to register under a different name, and you are only trying to verify whether they have officially changed gender or not, then this is not allowed and you should not be requesting additional documents to verify the gender change.
If the reason you have requested the birth certificate is in relation to a DBS check, then you will need the applicant to follow the Gov.UK guidance on Sensitive Applications.
Where you have information regarding a candidate being transgender then you can not share this information with your client. Under the Equality Act 2010 (EA), gender reassignment is a protected characteristic and you should not treat this candidate any less favourably as a result of being transgendered.
You should also be aware that where someone identifies as transgender then under section 22 of the Gender Recognition Act 2004 (GRA) it is unlawful to disclose protected information regarding someone’s gender to a third party, where that information was acquired in an official capacity.
In this case, an official capacity includes scenarios where the person acquiring the information is working either:
• as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer, or
• in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.
However, the GRA then goes on to state that where you obtain the consent of the candidate to disclose this information then this will be allowed, and there will not be an offence committed under the GRA.
Where you do inform your client of this fact with the candidate’s consent then your client must also not discriminate against the candidate based on this fact. As stated previously, gender reassignment is one of the protected characteristics covered by the EA, and rejecting a candidate, or treating them detrimentally as a result of their gender reassignment will be discriminatory. This would leave your client exposed to claims under the EA from the candidate.
If you are concerned about whether or not a client will be able to identify that the candidate whose details you have submitted to them is the same as the candidate who turns up to perform the role, then you may be able to provide additional information to the client regarding this. Alternatively, you can have a discussion with the candidate about additional information that is passed to the client, many transgender candidates are willing to engage with employment businesses and clients in regards to the sharing of information to ensure the process of finding them work is as smooth as possible.
This article was posted by Patrick Milnes, Legal Adviser, REC