“Gender is a spectrum” – gender-fluid employee awarded £180k for discrimination on the grounds of gender reassignment

“Gender is a spectrum” – gender-fluid employee awarded £180k for discrimination on the grounds of gender reassignment

Key Contact: Claire Knowles

Author: Rebecca Mahon

Rose Taylor worked at Jaguar Land Rover (JLR) as an Engineer for almost 20 years. From 2017, Ms Taylor identified as gender fluid/non-binary and used female pronouns (having previously used male pronouns). She resigned in 2018 after being subjected to abuse (amongst other things, being called “it”) and issues relating to the use of toilet facilities. Her grievances were, for the most part, ignored and no measures were put in place to “assist her transitioning”. She subsequently brought claims of constructive unfair dismissal, discrimination, harassment and victimisation (she was not allowed to retract her resignation) on the grounds of gender reassignment. She also brought claims on the grounds of sexual orientation, which the Tribunal agreed were well-founded but out of time.

The biggest issue that Ms Taylor faced, according to Ms Taylor’s solicitors, was proving that she had the protected characteristic of gender reassignment. The Equality Act 2010 defines the protected characteristic of gender reassignment as follows:

“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”.

JLR argued that Ms Taylor, who identifies as gender fluid, did not have the protected characteristic of gender reassignment.

Referring back to Hansard comments made by the Solicitor-General during parliamentary debates on the Equality Bill in 2009, the Birmingham Employment Tribunal found that “gender is a spectrum” and that gender reassignment, as now enshrined in the Equality Act 2010, “concerns a personal journey and moving a gender identity away from birth sex”. The unanimous decision of the Tribunal was that Ms Taylor absolutely had the protected characteristic of gender reassignment and that her claims for constructive unfair dismissal, discrimination, harassment and victimisation were well-founded.

At a subsequent remedies hearing, Ms Taylor was awarded £180,000 in compensation.

This landmark ruling suggests that other complex gender identities which involve individuals proposing to undergo a process of moving their gender identity away from their birth gender, may also fall within the definition of gender reassignment under the Equality Act 2010. Employers therefore need to tread carefully and sympathetically when it comes to supporting transitioning employees in the workplace. It should also serve as a stark reminder to employers that compensation in discrimination cases is uncapped. It is therefore vitally important to regularly train all staff on issues of diversity and inclusion.

Acuity’s employment team have delivered well-received diversity and inclusion training to a number of clients in-house. Our extensive experience has taught us that diversity and inclusion training often involves tackling sensitive issues head-on. We therefore strive to deliver our training in a relaxed and supportive environment to ensure all staff get the most out of every session. For an initial discussion regarding bespoke, in-house training, please contact Claire, Mark, or Adam.

Claire Knowles – Partner

Mark Alaszewski – Associate

Adam McGlynn – Solicitor

Daniel Evans – Solicitor

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