Gender Reassignment Discrimination – Non-Binary & Gender-Fluid Individuals

Recently, an Employment Tribunal (ET) ruled that non-binary or gender-fluid persons can fall under the protected characteristic of gender reassignment (under the Equality Act 2010 (the Act)) in the landmark case of Taylor v Jaguar Land Rover Ltd. This case represents a major development of UK employment laws.

Taylor v Jaguar Land Rover Ltd

Case background

Rose Taylor (Claimant) was an engineer at Jaguar Land Rover (Respondent), a position she had held for almost 20 years. In 2017, she began identifying as gender fluid/non-binary (having previously presented herself as a man) and, from this point, usually dressed in women’s clothing.

As a result, she suffered harassment and discrimination from her work colleagues in the form of comments referring to her as wearing a Halloween costume and asking her if she was going to get her “bits chopped off”. Plainly such comments were offensive and unwanted. The Claimant also suffered problems regarding the use of toilet facilities and received little to no support from her managers during this time when she raised complaints about the situation.

The Respondent’s stance appeared to be that if the Claimant was not willing to name the perpetrators, there was nothing it could do to help her. On 7th August 2017, whilst using the male toilets, the Claimant heard two colleagues talking about her. The first said “have you seen it?” and the other replied “I saw “it” in the atrium”. When the Claimant reported this to a member of the HR leadership team, that person responded by saying “well what else would you want them to call you?”.

The Claimant ultimately resigned from her position at the company and issued claims in the ET of discrimination on the grounds of gender reassignment and constructive unfair dismissal, namely that she had no choice but to resign due to the way she had been treated at work.

Jaguar Land Rover argued that because Ms Taylor was a gender-fluid/non-binary person, her claim could not be successful as it did not fall under the protected characteristic of gender reassignment under Section 7 of the Act – which states:

S7 (1) “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex

It is not a requirement for someone to undergo medical treatment in order to be covered by the Act. The Claimant’s legal team referred the ET to comments made in Parliament when the Act was being passed through the Commons back in 2009, in which gender reassignment was said to concern “a personal move away from one’s birth sex in to a state of one’s choice”.

The ET found that the Claimant did indeed have the protected characteristic of gender reassignment, as regardless of how she described herself, she was “on a journey” of transition and did not need to have arrived at the end of the (very broad) spectrum. The ET went on to conclude that the Claimant had been very badly mistreated by her work colleagues, who openly ridiculed her appearance. It noted a lack of support towards the Claimant when she had raised complaints and the Judge noted their surprise in the fact that the Respondent had sought to rely on the ‘statutory’ defence, which is where an argument is advanced that the employer took all reasonable steps to avoid the discrimination from occurring. Quite the contrary was the case here.

Whilst the Respondent had an Equal Opportunities policy, it was unable to actually produce it until the end of the ET hearing and could not evidence that staff were aware of it or had been trained on it. This was of particular concern in view of the fact with circa 50,000 staff (including agency and contractors), the Respondent was one of the biggest employers in the West Midlands with ample HR resource available to it.

ET Judge Hughes stated:

Having heard submissions on this point, this employment tribunal considers it appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.

“We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again.”

The Respondent agreed to pay the Claimant £180,000 in compensation. Given that the Claimant had been able to mitigate her losses and find work quite soon after leaving the Respondent, loss of earnings only formed a moderate part of the award and the bulk comprised value for injury to feelings, aggravated damages and a 20% uplift for the Respondent’s failure to follow the ACAS Code of Practice in respect of the Claimant’s grievances.

Comment

The primary implication of this case is that S7 of the Act will likely cover those which it was thought not to previously. Whilst this is a first instance decision (and therefore not binding), an appeal is not envisaged and employers need to therefore bear in mind that there is a range of gender identities that their workers may identify as, and that they should be sensitive to these different points of the spectrum.

The case also highlights again the importance of having an appropriate equal opportunities, diversity and inclusion policy and making sure that staff are:

  1. Aware of it and the implications of breaching it; and
  2. Trained on it.

Seeking to protect those with the protected characteristic of gender reassignment should form part of such policies and employers should also ensure that they use the appropriate terminology and guide their staff accordingly. In addition, where complaints are raised they should clearly be dealt with sensitively and promptly.

Redundancy CharitiesHow Nelsons can help

Melanie Morton is a Legal Director in our expert Employment Law team.

If you would like any advice in relation to the subjects discussed in this article, please contact Melanie or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.