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Legal Corner: Employment Tribunal clarifies on scope of discrimination on grounds of ‘gender reassignment’

25th Dec 2020
Legal Corner: Employment Tribunal clarifies on scope of discrimination on grounds of ‘gender reassignment’

Many readers will have heard of the Equality Act 2010 and will be aware that it is the key piece of legislation which prohibits discrimination and associated conduct in various defined arenas. Many will know that it covers discrimination on the grounds of race, sex, disability, and religion.

However, the Equality Act covers a wider range of characteristics, including philosophical (as well as religious) beliefs, age, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment.

The issue of gender reassignment has been in the news recently for a variety of different reasons – for example around the issue of whether minors can consent to treatment for gender reassignment and the legal and practical implications of such reassignment.

A recent decision in the Employment Tribunal provided further clarity on the scope of the protection available and also demonstrated the implications for employers who don’t emphasize this area of law.

Ms Taylor was employed by Jaguar Land Rover Limited as an engineer and had worked in various roles since 1998. At that time, Ms Taylor presented as a male.

In 2017, Ms Taylor informed her employer that she was transgender, transitioning from the male to the female gender identity. She said that she considered the word ‘transgender’ to be an umbrella term, “and in my case, the precise word would be gender fluid. I have no plans for surgical transition.”

Jaguar Land Rover argued that since the Equality Act protected those who were proposing to undergo, were undergoing, or had undergone a process to reassign their sex, Ms Taylor – who was ‘non-binary’ or ‘gender-fluid’ and was not undergoing any process of gender-reassignment – was not protected under the Equality Act.

The tribunal wholly rejected this argument; having considered the comments made by the sponsoring minister of the Equality Bill in parliament (available in Hansard) it was clear that the reference to gender reassignment referred to a personal process which might only manifest by reference to an intention, or a change of dress, or living the identity of the opposite sex. It need not require any medical process whatsoever. It was therefore clear that Ms Taylor was protected by the Equality Act 2010.

Unfortunately, Jaguar Land Rover did not have any particular support mechanisms for employees with any of the protected characteristics mentioned above, and no designated person to deal with diversity issues.

Although the HR team recognised the need to improve this situation, that took a very long time and required a great deal of pressure from Ms Taylor, who the tribunal found, ended up becoming a champion or ‘poster girl’, for LGBT+ rights in the workplace. Not only that but although Jaguar Land Rover had both a Dignity at Work policy and an Equality and Diversity policy in place, the tribunal found that managers, particularly those dealing with Ms Taylor, had not received any proper training on these policies.

The tribunal concluded that Ms Taylor suffered from an extensive period of harassment by work colleagues on the grounds of her gender reassignment, including the making of highly offensive questions and comments about her appearance, and many references to her by colleagues as ‘it.’ Concerning the latter comment, when she complained to HR, she was told ‘Well what else do you want them to call you?’.

Although Jaguar Land Rover accepted that Ms Taylor suffered from such harassment, nothing was done to provide her with appropriate support or prevent the harassment from occurring, and Ms Taylor ultimately resigned. The tribunal found that she was constructively unfairly dismissed; she was awarded total compensation of £180,000 and is still pursuing a claim for her legal costs, which is due to be heard in January 2021.

The key message from this case is the responsibility that each employer has to its employees with any protected characteristic; to not only have policies in place that protect and provide support but to ensure that management is aware of such policies and are provided with guidance on how to deal with issues that might not be within their sphere of knowledge.

The tribunal particularly noted in this case that Ms Taylor’s managers were out of their depth and ‘looking for a lifeline, which was not there.’ Jaguar Land Rover had not provided them with appropriate HR support. The consequences of that were a lengthy court battle and order for significant compensation to be paid, not to mention the adverse publicity that such a case inevitably generates. All employers (and indeed managers) are well-advised to take heed from the lessons that this case highlights.

Safia Tharoo
Barrister, 40 Bedford Row, London

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