Transgender Awareness Week — Supporting transitioning employees

As it is Transgender Awareness Week, we thought it would be helpful to consider the recent case of AB v Royal Borough of Kingston Upon Thames that was heard in the South London Employment Tribunal to raise awareness as to how employers can support employees who are transitioning.

The legal bit

Section 13 of the Equality Act 2010 states: a person (A) discriminates against another (B) if because of a protected characteristic, A treats B less favorably than A treats or would treat others.  The unfavorable treatment must be “because of” the protected characteristic. Gender reassignment is a protected characteristic.

The Facts

The Claimant, AB, a trans woman worked in the Council. She transitioned with effect from 1^st July 2020 and gave her employer 8 months’ notice that she was going to transition. She brought claims against her employer of 23 instances of less favorable treatment because of her gender reassignment.

The employment tribunal decision

The employment tribunal upheld 10 of the 23 instances which included allegations of deadnaming. Deadnaming is the act of referring to a transgender person by a name they used prior to transitioning such as their birth name. This can be regarded as offensive by a trans person. When AB transitioned she used female pronouns and rejected her previous male name and pro nouns.

The alleged discriminatory deadnaming acts were:

1. Failure to update AB’s name on pension records from 1^st July 2020 to 8^th August 2022
2. Failure to update AB’s name on her door pass from 1^st July 2020 to 28^th April 2022
3. Failure to update AB’s name on the CRM complaints system from 1^st July 2020 to 22^nd February 2022
4. Failure to update AB’s name on the staff directory from 1^st July 2020 to 9^th March 2023
5. Failure to update the vehicle pass that AB received on 4^th January 2021
6. Failure to update AB’s name for security training.

The employment tribunal upheld the complaints of direct discrimination which amounted to less favorable treatment because of gender reassignment.

In addition the employment tribunal was highly critical of the polices and procedures that were in place at the Respondent. The employment tribunal made a finding that the policy had not been updated in line with the Equality Act 2010 and was only updated when a new Dignity at Work policy was implemented in December 2021 “many years after the legislation changed.”

In addition the employment tribunal stated:

"While we accept that the Equality Act was in place and therefore the employer was bound to meet its obligations, we find that it had failed to incorporate these legal obligations into its policies.” It further stated, “It had not provided appropriate training to staff. It did not have any policy in place that would assist individuals like the claimant.

We are surprised at such an omission by a local authority and we find its policies and practices at the time of the claimant transitioning to have been woefully inadequate with both a failure to provide guidance to staff undergoing transition and to team managers.

We understand why the claimant felt badly let down by her employer. She was left to navigate a complex set of respondent systems with no support or even signposting from HR as to how to do this. We were told that the respondent employs around 4,500 people and has an HR strength of around 60, yet despite this level of resource there was nothing appropriate in place. No adequate explanation has been given for this significant failing."

The employment tribunal awarded £21,000 for injury to feelings which was the middle band of the Vento guidelines and with interest amounted to £25,423.

Comments

There are a number of learning points from this judgement which include:

• Having a specialist policy dealing with transgender staff;
• Ensure all policies are updated and regularly reviewed;
• Have adequate training for all staff on equality diversity and inclusion;
• Ensure IT and data storing systems are prepared to deal with the gender change.