An Employment Tribunal upheld claims for harassment, direct discrimination and victimisation on the ground of gender reassignment brought against Jaguar Land Rover Ltd (JLR) by one of its engineers, Ms Taylor, who, having identified as gender fluid/non-binary, usually dressed in women’s clothing. Ms Taylor claimed that she was subsequently subjected to insults and abusive jokes at work, suffered difficulties with the use of toilet facilities and that managerial support was lacking. Ms Taylor has been awarded compensation of £180,000 and a number of recommendations have been made in respect of JLR.
A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex (section 7, Equality Act 2010 (“EqA”)).
Ms Taylor worked for JLR for nearly 20 years as an engineer and had previously presented as male. In 2017 she began identifying as gender fluid at work and began wearing women’s clothes and using female pronouns. As a result, she was subjected to insults and abusive jokes from colleagues as well as suffering difficulties with toilet facilities and a lack of management support. Ms Taylor resigned in 2018 and pursued claims of discrimination on the grounds of gender reassignment and sexual orientation, constructive dismissal and victimisation.
This case is important as it is the first case in which the Tribunal has held that a person that identifies as gender fluid or non-binary falls within the definition at section 7 of the EqA. The Tribunal held that Ms Taylor was covered by the definition and accordingly the way she had been treated amounted to discrimination.
While reasons for the judgment were given orally in September, written reasons were requested and will be provided in due course. Since that date the parties agreed at a Remedy Hearing that Ms Taylor should be awarded £180,000 in compensation and that JLR would implement a number of steps recommended by the Tribunal to improve its practices. Those steps are:
- That JLR agrees to appoint one of its number as a Diversity and Inclusion Champion.
- The JLR Board shall commission a report by a recognised diversity organisation, such as Stonewall, to investigate diversity and inclusion throughout JLR (to include speaking to Ms Taylor) and produce a report setting out the current position and the steps necessary for JLR to become a “standard setting organisation” in the diversity and inclusion field across all protected characteristics.
- Thereafter, for the next five years, an expert appointed in the same way will produce an annual report of progress by reference to the original report.
- The report referred to in paragraph 2 above, and the annual reviews referred to in paragraph 3 above, shall be made public and sent to all employees and workers at JLR, and to Ms Taylor.
What does this mean for you?
The terms gender-fluid and non-binary are in common usage but this is the first time a Tribunal has confirmed that people that identify as such are protected under the definition of gender reassignment under the EqA. It is important to understand terms such as trans, transgender, non-binary and gender-fluid and to treat everybody fairly and equally, regardless of what label they assume.
Workplace inclusion is important to having a happy and cohesive workforce which will benefit the business. Whilst most businesses have an equality and diversity policy of some kind it is worth revisiting this regularly to ensure that the terminology is up to date and that it reflects the ethos of the business. However, simply having a policy is not enough to protect your business in the event of a discrimination claim. There is a statutory defence open to employers if you can show that you have taken “all reasonable steps” to prevent discrimination in the workforce and that an employee was acting in a way that is not acceptable in your business. This means you should provide training to staff at the start of their employment and on an ongoing basis on your standards and equality and diversity. Further, it is important that employees know they can speak to someone if they are being treated badly because of a protected characteristic and that you will take it seriously and act upon their concerns. A failure to do so could be very costly both financially and from a reputational point of view.
This information is provided for guidance only and should not be considered specific legal advice. If you would like further advice or assistance in respect of any of the topics covered please contact Kelly Gibson on 0114 218 4307 or Kelly.Gibson@tayloremmet.co.uk