Discrimination against LGBT (Lesbian, Gay, Bisexual and Transgender) individuals in the workplace remains a live issue, with surveys reporting that strong employer prejudices exist in respect of the recruitment of transgender workers and that workplace equality procedures leave much to be desired.
LGBT Workplace Discrimination
The Government’s Action Plan
The Government has made a commitment to improving the lives of such individuals and in July 2018, following a huge national survey, the Government Equalities Office published its ‘LGBT Action Plan 2018’. This pledges £4.5 million towards, amongst other things:
- Providing employers with free training materials to support inclusion in the workplace;
- Continuing to take action on sexual harassment in the workplace;
- Convening a working group of employers to help understand the experiences of LGBT employees; and
- The Civil Service continuing its work to strengthen how bullying, harassment and misconduct are tackled.
The Government has also committed to review and reform the Gender Recognition Act 2004 to make it easier for a transgender person to be legally recognised as their chosen gender. The consultation in this respect closes on 19 October 2018.
Background
Gender reassignment is a protected characteristic under the Equality Act 2010 (“the Act”). Under the Act, it is unlawful (subject to limited exceptions) to:
- Directly discriminate against a job applicant or employee by treating them less favourably because of gender reassignment, including in relation to absence from work;
- Indirectly discriminate against a transsexual job applicant or employee by applying a provision, criterion or practice which disadvantages them;
- Harass a job applicant or employee because of gender reassignment, or subject them to less favourable treatment because of such harassment; and
- Victimise a job applicant or employee because they have made a discrimination complaint, or asserted their rights under the Act.
If a job applicant or employee is successful with a gender reassignment discrimination claim, an Employment Tribunal has the power to award uncapped compensation for injury to feelings. The nationwide retailer, Primark, know this only too well.
De Souza E Souza v Primark Stores Ltd [2017] UKET 2206063/2017
Case
The case of De Souza E Souza v Primark Stores Ltd, heard earlier this year, serves as an important reminder that employers must be alive to their obligations and liabilities under the Act.
The Claimant was a transgender woman who worked for Primark. The Employment Tribunal held that Primark subjected her to direct gender reassignment discrimination by failing to properly investigate and deal with matters brought to their attention, which eventually led to her constructive unfair dismissal. These matters included:
- The Claimant being called Alexander/Alexandra and being laughed at by colleagues, even when she corrected them;
- Colleagues spraying the Claimant with scent and saying “I can smell urine like a men’s toilet”;
- Colleagues discussing the Claimant’s “man’s voice” and her having “evil inside her”; and
- Colleagues informing an electrician that he could go into the ladies toilets as there were no ladies in there, knowing the Claimant was there.
The Employment Tribunal awarded the Claimant just over £47,000 for loss of earnings and injury to feelings, which included a 25% uplift for Primark’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
The Employment Tribunal held that the treatment of the Claimant was so severe that, had there been no evidence of pre-existing causes of distress, they would have not hesitated in awarding top level damages.
Comment
In light of this decision and the recent Government commitment to tackling LGBT discrimination, it would be wise for employers to refresh equality training for employees and adopt sound written policies on how new or existing employees, who wish to undergo gender reassignment, should be treated.
If an employer can demonstrate that it has taken all reasonable steps to prevent discrimination taking place, in some circumstances, this will serve as a defence to allegations of discrimination.
How Nelsons Can Help
For further information, please contact our employment law specialists on 0800 024 1976 or contact us via our online form.