We should note that this is a first instance tribunal decision, so it is not legally binding. However, it is an important case, as it finds that protection is available for ‘non-binary’ or ‘gender-fluid’ individuals under the Equality Act 2010.
In Taylor v Jaguar Land Rover Ltd, Ms Taylor worked as an engineer at Jaguar for almost 20 years. She previously presented as male but in 2017 began identifying as gender fluid/non-binary. She told managers that she was transitioning from male to female and started to attend work in female attire. As a result, she was ridiculed by her colleagues, who referred to her as ‘it’. It is reported that Ms Taylor reported this to HR, whose response was ‘what else would you want them to call you’. Colleagues would also ask her if she would have her ‘bits chopped off’ and when walking towards the onsite coffee shop at a different site, a female colleague looked at her and said, ‘oh my god!’.
To put it broadly, to be able to claim discrimination or harassment under the Equality Act 2010, a claimant must be able to show that they have been treated less favourably than others (discrimination) or have experienced unwanted conduct (harassment) because of a protected characteristic.
The Equality Act 2010 provides: ‘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 she did not have the protection provided for under the Equality Act 2010 as the protected characteristic of gender reassignment did not apply to her because she was not intending to transition, instead, she described herself as ‘non-binary’ or ‘gender-fluid’.
The tribunal disagreed and held that Ms Taylor was protected, because irrespective of how she described herself, she was “on a journey” of transition, and that the legislation did not require any medical process.
All in all, Ms Taylor successfully argued in the employment tribunal that she had suffered harassment, direct discrimination and victimisation because of gender reassignment and sexual orientation. She was awarded £180,000 as compensation. It should be noted that Ms Taylors compensation was uplifted by 20% because of Jaguar’s complete failure to comply with the ACAS Code of Practice in relation to her grievances about measures to assist her transitioning.
In the case, it was also commented ‘We thought it astounding that there was nothing in the way of proper support, training and enforcement on diversity and equality until the claimant raised the issue in 2017, bearing in mind how long the legislation has been in force.’
ACTIONS FOR EMPLOYERS;
Some steps an employer can take to support their employees include:
Regularly review and update their equality policy and ensure employees have access to this policy.
Consider training for managers and staff on diversity and equality within the workplace to rasie awareness and understanding.
Fully investigate all allegations of discrimination and harassment at work and consider what pro-active measures your business could implement to prevent such allegations occurring.
Review documentation to ensure use of inclusive pro-nouns, such as employee, staff, them, their.
Please contact us to find out more about the ways in which we can support.
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