The law and best practice lack clarity on how employers can best support employees who are going through gender reassignment or have transitioned, ensuring that they avoid claims of discrimination.
The difference between gender reassignment and non-binary gender identities may require different treatment. In this article we examine both the law and a series of recent legal developments to provide guidance on how to effectively manage and prevent discrimination in the office.
The Law and Recent Developments
The law provides protection for employees under the protected characteristic of ‘gender reassignment’ but until recently there was ambiguity for the scope of protection provided to non-binary people.
Gender reassignment was previously interpreted more narrowly as being limited to an individual proposing to undergo, undergoing or having undergone a process for the purpose of reassigning their sex by changing physiological or other attributes of sex. Whereas the term ‘non-binary’ refers to an individual who may wish to be recognised as neither male nor female or adopt another approach. However, recent case law has extended the scope of legal protection to non-binary employees.
Equality Act 2010 (“EA10”)
Under the EA10 gender reassignment is a protected characteristic. It is unlawful for an employer to subject an employee or job applicant to discrimination (directly or indirectly), harassment or victimisation in respect of a protected characteristic. It should also be remembered that both the employer and employee may be liable when an employee harasses another.
Taylor v Jaguar Land Rover Ltd[1]
In a case widely reported in the national media, an employment tribunal found that a non-binary person was covered by the protected characteristic of gender reassignment.
Ms Taylor had worked for Jaguar for nearly 20 years but began identifying as a non-binary person. She subsequently was subjected to abuse and a lack of support from her employer. She brought a claim for harassment, direct discrimination and victimisation on the grounds of gender reassignment.
A non-binary person does not fit neatly into the EA10 definition of gender reassignment. The Tribunal recognised that it was a novel area of law but found Ms Taylor did fall within the definition of the gender reassignment as provided by the EA10. The case represents a significant shift in the law so that a greater scope of protection will be provided to non-binary individuals.
Maya Forstater v CGD Europe and others[2]
In a significant decision a Tribunal held that that a Claimant’s belief that sex was biologically immutable did not have the protected characteristic of ‘philosophical belief’ under EA10 because her view is absolutist in nature and so incompatible with human dignity and fundamental rights of others.
The Claimant was engaged as a visiting fellow at the Respondent by a consultancy agreement. She was concerned about proposed changes to the Gender Recognition Act 2004 (“GRA”) such as permitting people to self-identify their gender. She tweeted a number of times on the subject of the proposed changes and more broadly on trans issues. Staff of the Respondent raised complaints about her the tweets as they found them to be transphobic. The Claimant’s contract ended, and she was not offered a further consultancy agreement. She claimed that her gender critical views are a philosophical belief under EA10 and consequently she has been subject to direct discrimination.
The judgment applied the established criteria from Grainger[3] to determine if her belief can be considered to qualify as a “philosophical belief” under s.10 EA10. Whilst the court found that the Claimant genuinely held the belief that biological sex was immutable, it went on to find that her belief was incompatible with human dignity and so not protected by EA10. Crucially, because the core of her belief is that transwomen are men and because she would positively assert this belief it could violate others’ dignity and create an intimidating, hostile, degrading, humiliating or offensive environment for them.
Higgs v Farmor’s School[4]
In a contrasting case to Forstater, an employment tribunal found that a Christian employee’s belief that gender cannot be fluid and cannot be changed were protected beliefs under the EA10.
Mrs Higgs worked for a school as a pastoral administrator and work experience manager. It was brought to the School’s attention that Mrs Higg’s had posted on her Facebook account links to articles which criticised gender fluidity as a “perverted vision” and demonstrated prejudiced views. She was subsequently dismissed for gross misconduct on the basis of discrimination and inappropriate social media use.
Mrs Higgs brought a claim for direct discrimination and harassment in respect of the protected characteristic of religion. The Tribunal held that her various views on non-binary people were protected beliefs. The case was distinguished from Forstater as Mrs Higg’s beliefs were unlikely to result in discrimination against a trans person as there was no suggestion she would deliberately seek to offend.
However, the Tribunal concluded that there was no direct discrimination as she had not been dismissed because of her beliefs but that her actions may reasonably be perceived as homophobic and transphobic. Equally, the claim for harassment failed as the conduct of the school was not related to the protected characteristic of religion or belief.
X v Y[5]
Another notable case in a series of recent cases related to gender reassignment is that of X v Y. Where the Tribunal recognised it had made a mistake in not anonymising the parties’ names.
The claim was for unpaid wages and holiday pay but were brought out of time. The Claimant did not have legal representation and did not realise an order should be made to protect their privacy at the first hearing by anonymising the party’s names. The judgment contained highly personal information on the Claimant’s transgender identity and mental health. The Claimant had not understood the judgment would be made public in this manner and appealed the decision, seeking for parts to be redacted and their name anonymised.
The Employment Appeal Tribunal recognised that the judgment should have been anonymised to protect the Claimant but it would rarely be proportionate to delete sections of a judgement.
Lessons for Employers
1. Keeping Pace
The case of Taylor highlights how both the law and societal views are shifting and employers must ensure they are keeping pace with developments. This is even more important for public bodies to consider due to their positive legal duty to promote equality. We suggest that all organisations should regularly review and update their policies and procedures, reviewing dress codes and responding to employee concerns promptly.
Taylor also shows there is a pressing need for employers to ensure effective training is being provided to all employees so there is a greater understanding and knowledge of the experiences of non-binary and transgender employees.
2. Culture
Higgs serves an important reminder that within an organisation a number of different beliefs will be held by employees and an employer must be careful to respect the differing views. However, in cases of an employee displaying prejudiced behavior there is no exception on the basis of belief which would require an employer to tolerate it.
Employers should not dismiss the small acts which can help to foster an environment where a transgender or non-binary employee feels welcomed. This can extend to including pronouns in their email footer, ensuring language and communication used by employees is considerate and facilitating social events which are not exclusionary.
3. Confidentiality
In X v Y, the tribunal explicitly acknowledged the highly personal nature of gender reassignment and the pressing need to ensure the individual’s privacy is protected. Employers must endeavor to protect employee’s personal information so that the employee feels safe in the work environment and so that their personal circumstances are dealt with compassionately and not interfering with their work.
4. Balancing Beliefs
Finally, the tweets of Ms Forstater and the eventual consequences of those tweets provide a clear illustration of the ‘grey area’ where an employee’s beliefs outside of work can come into conflict with their employment. The case must be interpreted carefully as it does not seek to curb free speech and Ms Forstater would be able to continue to campaign against changes to GRA but misgendering a person involves violating the dignity of others.
Forstater also highlights the difficulty a business may experience when having to balance the rights of non-binary individuals and other employees. An example of this contentious issue is the attempt by some organisations to phase in non-gender specific toilets. This has caused consternation among some cis-gender females who feel their safe spaces are threatened. There is no clear solution, which will suit all parties but the key issue is to try to find a solution through comprehensive consultation.
Sharpe Pritchard has a number of experienced employment solicitors who can help businesses comply with the latest employment regulations and best employment practices. Please contact Julie Bann if you wish to discuss any related employment queries.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.
[1] ET/1304471/2018
[2] [2019] 12 WLUK 516
[3]Grainger Plc v Nicolson [2010] 2 All E.R. 253, [2009] 11 WLUK 14
[4] ET/1401264/19
[5] UKEAT/0302/18
