An employee who worked for the Borough of Kingston Council has been awarded over £25,000 in damages after successfully claiming direct discrimination on the grounds of gender reassignment. This involved the council using her previous name while she was undergoing a gender transition.
AB v Royal Borough of Kingston upon Thames
Background
Miss AB, as she was referred to in the anonymised judgement, claimed the Council “deadnamed” her when it failed to update her records after she transitioned to a woman. Deadnaming is a term referring to a trans person by the name, and therefore gender, that they used prior to transitioning.
AB worked in the transport department and gave the Council eight months’ notice that she intended to transition and did so from July 2020.
Regardless of AB’s efforts to change her name on a door pass, pension records, and a staff directory, it took two years for the matters to be resolved. In addition to this, AB informed the Tribunal that she did not receive any support and that the Council had failed its duty of care.
An argument happened between AB and her managers when she raised concerns regarding street lighting plans which she considered to be unsafe. Her employers accused AB of having a “hissy fit” and indicated this to her in emails. The Tribunal established it was “derogatory” and “unprofessional” language.
AB accused her employers of leaving her out and implying that she was incompetent and not doing her job properly. She said in an email:
“If you wish to proceed I will pass this to HR as I feel since my transition, I have been singled out on a witch-hunt and if you wish me to resign I will do this on grounds of constructive dismissal and secondary discrimination, I will not be bullied and treated in a demeaning manner.”
One of her managers demanded an apology, a view the Tribunal said showed officials had a “dismissive” attitude to her concerns and worries.
AB told the Tribunal how she had a painful time in 2020 after she transitioned. She said that she found a post-it note stuck to her locker with her deadname scribbled out and her post-transition name put on it, in full view which meant everyone could see. It was discovered by the Tribunal that this incident had not been rectified until April 2022 and there was no sign of an investigation into who had done this.
The Tribunal’s findings
The Tribunal said in its judgement how AB’s deadnaming amounted to less favourable treatment due to her protected characteristic. The Tribunal therefore awarded her £25,400 in compensation, £21,000 of which was for injury to feelings. However, the other aspects of AB’s claim did not succeed.
At the time of AB’s transition, there was an Equality and Diversity Policy Statement which had been updated in 2018 and gender reassignment was also mentioned in Kingston’s 2006 Dignity At Work Policy. The policy referred to sexual harassment under the Sex Discrimination Act which is to provide protection to those against discrimination on specific grounds, for example, someone who either is set to undergo, is undergoing, or has undergone gender reassignment.
The Tribunal has said that the policy had not been updated with regards to the Equality Act 2010 and was only rectified when a new Dignity at Work Policy was introduced in 2021, the judgement stated: “many years after the legislation changed.”
The Employment Judge Fiona Mclaren said:
“While we accept that the Equality Act was in place and therefore the employer was bound to meet its obligations, we find that it had failed to incorporate these legal obligations into its policies.
It had not provided appropriate training to staff. It did not have any policy in place that would assist individuals like the claimant.
We are surprised at such an omission by a local authority and we find its policies and practices at the time of the claimant transitioning to have been woefully inadequate with both a failure to provide guidance to staff undergoing transition and to team managers.
It does not appear any apology has been offered to the claimant or other staff potentially facing the same issues.”
In response, the Chief executive of the Council, Sarah Ireland, said:
“We are very sorry for the shortcomings in the experience of our employee and for the distress this has caused. Prior to the outcome of the tribunal we had taken actions to free our workplace from discrimination. These include ensuring our managers are knowledgeable and understanding of the support they need to give our employees, providing all staff with mandatory diversity and inclusion training, trans and gender diversity sessions as well as developing our Trans Equality Policy and supporting guidance for staff who start their transitioning journey whilst working for the council.
“We have improved our processes and systems to better support officers from the trans and non-binary community and also reviewed our dignity at work policy to make it easier for employees to report any incidents of discrimination…We are committed to doing the hard work necessary to create a workplace that is welcoming and inclusive to everyone including our trans and non-binary colleagues.”
What should I be doing as an employer?
As an employer you must always ensure you do not discriminate on any grounds towards your employees.
It is important to show compassion and support to any employee and to try and help them feel most comfortable in any situation. If they request to be referred to as a different name, it is important you take their wishes seriously.
It is also important to ensure your staff have the appropriate training as well as up-to-date policies in place that can assist individuals like the claimant in this case.
How can we help?
Kate Frisby is an Associate in our expert Employment Law team, advising on performance management, the drafting of policies and contracts, settlement agreement negotiations and assisting with claims in the Employment Tribunal.
For advice on or further information in relation to the subjects discussed in this article, please contact Kate or a member of our expert Employment Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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