11 December, 2020
The Employment Tribunal has recently rapped the knuckles of Jaguar Land Rover regarding the treatment of a non-binary or 'gender fluid' member of staff, highlighting an important development in discrimination law. In Taylor v Jaguar Land Rover the employee was employed as an engineer for the respondent. In 2017, she told managers that she was transitioning from male to female. She subsequently suffered harassment and discrimination on attending work in female attire, and ultimately resigned. She complained of various forms of discrimination on grounds of gender reassignment, and constructive dismissal.
The Equality Act 2010 states:
"A person has the protected characteristic of gender reassignment if the person is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing the physiological or other attributes of sex"
Jaguar argued that the claimant did not fall within this protected characteristic because she described herself at times as "non-binary" or "gender fluid". However, the Tribunal identified numerous occasions where the claimant was ridiculed and mistreated due to the proposed gender reassignment.
The Tribunal held that the Claimant was attracted the protection of the Equality Act on the basis of gender reassignment as, irrespective of how she described herself at any given time, she was "on a journey" of transition, and it was clear that that journey did not require any medical process to be undertaken. Not surprisingly given the findings of fact, the Claimant succeeded in her claims of discrimination, harassment and constructive dismissal.
Whilst it is important to bear in mind that this is a first instance decision which don't usually set precedent for future binding decisions, this case has, however, indicated the propensity of the Tribunal to include non-binary/gender-fluid individuals in the protected characteristic of gender reassignment. It is difficult to see how the Appeal Tribunal would differ from this view and as such this case has attracted a considerable degree of attention.
As more individuals identify as gender-fluid, employers need to be cautious and ensure steps are taken to avoid bullying and harassment in the workplace. Whilst there is a delicate balance between the employees right to privacy and ensuring other employees understand the expectations on them, where possible employers should consider the need for tailored training and fluid communications regarding what is expected from staff and behaviour that will not be tolerated. If complaints are received or grievances raised, it is vital that they are dealt with on the basis that the employee has a protected characteristic.
We strongly advise employers to revise Equality and Diversity policies and ensure that any training is updated to cover gender-fluidity. However, employers need to take note of the impact this has on these individuals; having diversity and inclusion policies is often not enough. Active steps to promote those policies and educate their workforce on their content is vital.
Additionally, practical changes to workplaces and facilities may be required, the manner in which data on the employee is held may be affected along side what can be retained, and extra support and leave may be required. It can be a complex area to manage. Forbes Solicitors offer comprehensive training surrounding issues of gender and gender-fluidity in the workplace and would be happy to offer it to your organisation. We can also provide expert advice regarding operation changes required as a result of the law surrounding this protected characteristic.