I have talked in the past about the things we can all do to be more respectful to the plus sign portion of our LGBTQ+ community (please see my previous Blogs:
I am definitely noticing email footers where it tells me what somebody’s preferred form of address for correspondence is or the pronouns that that person would like us to use.
The law is often playing catch up but the Employment Tribunal has confirmed the Equality Act definition of gender reassignment (which is a protected characteristic under Section 7) extends to binary and gender fluid individuals.
The definition in Section 7 says “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”. There has been a lack of clarity as to whether the law will protect those who see themselves as neither male or female.
The particular case involved Jaguar Land Rover and an engineer that worked for them for nearly 20 years. Initially that person had presented as male but in 2017 he began identifying as gender fluid, started dressing in women’s clothing and will have undoubtedly presented Jaguar Land Rover with the usual challenge that comes in these situations with insensitivity from colleagues and an issue over bathrooms.
Jaguar Land Rover argued that this particular individual (who was bringing claims in relation to the harassment that they had suffered before their resignation in 2018) did not fall within the definition of Section 7.
During the Hearing, the Barrister for the individual pointed out that when Parliament had been debating the Equality Act, specific discussion about gender being a ‘spectrum’ had taken place. The Tribunal found in the employee’s favour.
The case is also notable because an award was made for aggravated damages which is open to a Tribunal to award where it believes the employer has treated somebody in a particularly egregious way including, in this case, the way that the employer had defended the proceedings. There was also a 20% uplift because the employer had completely failed to follow the ACAS Code of Practice in relation to the employee’s grievance about measures that would have assisted her in transitioning.
Technically this is a first instance decision which could be appealed but it is indicative of the direction of travel and the need for all employers to think more broadly about inclusivity and the steps that could be taken if a member of staff wanted to identify as a different gender or indeed neither male or female. For anyone that has never had to deal with this issue, the common sense guidance we can give is to actually talk through the situation with the individual concerned and ask them what they would like to have happen. They will no doubt be able to point you to all sorts of guidance and good practice.
** The employee was awarded £180,000 compensation which itself is significant. No information has been published about how that award was calculated but it is bound to be a large element of injury to feelings with things like pension losses included.
Refreshing Law Ltd
25 September 2020
** updated on 13.10.2020