Significant Discrimination Decision

An employee has won discrimination and harassment claims after an Employment Tribunal held that the Equality Act 2010 does protect non-binary and gender fluid people from discrimination under the protected characteristic of ‘gender reassignment’.

Until now, there was uncertainty over whether Equality Act protections extended to those who identify as gender-fluid/non-binary. Whilst this is an employment tribunal decision and not binding on other tribunals, it will be influential in other cases.

R Taylor v Jaguar Land Rover is a reminder for employers to ensure that all employees are treated with dignity and respect in the workplace and that appropriate steps are taken to reduce the risk of discrimination and harassment occurring.

The Facts of the Case

The employee was an engineer and after working for the employer for 20 years identified as gender fluid/non-binary, usually wearing women’s clothes. The employee was subjected to insults and jokes by colleagues related to gender identity and received little support from management. The employee resigned and was later not permitted to retract the resignation.

The employee brought claims of harassment and direct discrimination because of gender reassignment, constructive unfair dismissal and victimisation.

The employment tribunal upheld the claims. The judge considered whether the employee as a gender fluid/non-binary individual fell into the definition of gender re-assignment under the Equality Act 2010. He held that the employee did have the protected characteristic of gender re-assignment. The employer had tried to argue to the contrary, but it was found that this argument was without merit. The judge held that the employee had been harassed, discriminated against, constructively dismissed and victimised.

Whilst the amount of compensation to be awarded to the employee will be determined at a hearing in October, the judge:

  • Held that compensation would be uplifted by 20% because of the employer’s failure to comply with the ACAS Code of Practice in relation to the employee’s grievance about short term measures to assist with transitioning.
  • Held that aggravated damages should be awarded ‘because of the egregious way’ the employee was treated and ‘because of the insensitive stance’ taken by the employer in defending the case.
  • Was minded to consider making recommendations to alleviate the employee’s injury to feelings by ensuring the employer takes steps to avoid this situation arising again.

 Kingfisher’s Advice

It’s important for employers to be aware of this decision and to ensure that matters relating to gender and gender re-assignment are managed sensitively and appropriately. Employers should take suitable steps to prevent discrimination and harassment of any kind from occurring in their organisation. Steps can include having appropriate policies in place, clearly communicating these from the outset of employment and providing employees and managers with appropriate training. This can reduce the likelihood that breaches of the Equality Act will occur.

Sometimes issues do arise, so managers need to be alert to grievances and ensure that these are addressed respectfully, appropriately and promptly.

If you have an employment law matter you would like advice on, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.

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