Many employers who find they have a gender fluid or transitioning employee won’t have had to navigate this issue before. As an employer you should know what actions to take to support the employee and wider workforce and to ensure that costly discrimination claims are avoided. The pub, restaurant and hotel sector also needs to consider customer behaviour towards a transitioning/gender fluid member of staff.
Ms Taylor v Jaguar Land Rover Ltd
The judge heavily criticised Jaguar Land Rover and ordered it to pay £180,000 in compensation to Ms Taylor who brought a claim of discrimination.
Jaguar Land Rover employed Ms Taylor as an engineer . She subsequently identified as gender fluid and work colleagues subjected her to bullying and harassment. Both staff and contractors made comments e.g. “…is this for Halloween?” and “….you have cracking legs”.
Ms Taylor raised concerns on numerous occasions but neither HR nor management provided her with any meaningful support . Ms Taylor brought claims of direct discrimination, harassment and victimisation on the grounds of gender reassignment.
Gender Identity protected under Equality Act
The court recognised that the rights of individuals with complex gender identities are protected by the Equality Act:
“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”
Ms Taylor was not planning to have surgery but the Tribunal said that she was clearly on a journey of transition. This judgment recognises that the rights of individuals with complex gender identities (e.g. non-gender, gender queer and agender) are protected by the Equality Act.
Jaguar Land Rover heavily criticised
The Tribunal were heavily critical of the HR function and of the wholesale failure it discovered at Jaguar Land Rover to address the LGBT issue in the workplace or support Ms Taylor. It found that, although the company had policies and agreements in place, its culture was not aligned to these and said that “This is a systemic failure and demonstrates that the Respondent values its employees’ ability to perform their key roles far more than their personal welfare and wellbeing”.
Employers take note
- Policies – Not only must you introduce an Equal Opportunities and Dignity at Work policy but, vitally, you must implement this. You must be able to show that staff have been trained in these issues and understand their obligations and responsibilities.
- Toilets – Jaguar Land Rover required Ms Taylor to use the disabled toilets. This was offensive. Disabled toilets are for disabled people and should not be used by others. If this issue arises do contact us for further guidance on the best approach to take.
- Positive approach – Jaguar Land Rover wanted Ms Taylor to name the employees who had made offensive comments before they would take action. The Tribunal made it clear that employers must take a positive approach to inform staff and contractors what is acceptable behaviour in the workplace and the consequences of not complying. Hospitality employers shoud ensure that customers understand what conduct is acceptable as well as staff if claims of harassment and victimisation are to be avoided.
- Adverse Publicity – Adverse publicity is very damaging to business. The Tribunal were openly very critical of Jaguar Land Rover and unusually made a statutory recommendation that the board of directors should read the judgment and its reasons at a board meeting. The company was also required to appoint a diversity and inclusion champion, to make investigations across the business and to report on statistics annually and publically.
Advice from Robin White – barrister
What should employers do if they are not sure about how to best support an employee who is transitioning or who is gender fluid? I recently asked Robin White that question. Robin was the barrister who successfully represented Ms Taylor in the Land Rover case and she herself has had her own transition journey.
Robin told me that the best approach was to: ask. Every person’s journey is different and asking an employee about what would help them is a good starting point.
For further information please contact Christopher Sing
