Transgender discrimination — what to consider

An employment tribunal considered whether it was discriminatory to use a gendered swearword to insult a transgender staff member, and also what might amount to "a reasonable steps defence."

Facts

Miss Fischer, a trans woman, (the claimant) was an agency worker engaged as a bus driver by London United Busways Ltd (the Respondent). The Respondent terminated her engagement after three months. The claimant subsequently brought a claim of direct gender reassignment discrimination under the Equality Act 2010. One of the three alleged incidents of discrimination forming part of the claimant’s claim was that a colleague in her depot had called her a "w….r" while they were at work. She alleged that this was less favourable treatment because of her gender reassignment and that the Respondent was vicariously liable for it, as it had occurred during the course of the colleague's employment. The Respondent's position was that this incident had not occurred, but even if it had, the Respondent was not vicariously liable because it had taken all reasonable steps to prevent the incident.

The legal bit

Protection of contract workers from discrimination:

It is unlawful for a principal to discriminate against or victimise a contract worker:

• as to the terms on which the principal allows the worker to do the work;
• by not allowing them to work or to continue to work;
• in the way in which it affords them (or by refusing or deliberately not affording them) access to any benefits; and
• by subjecting them to any other detriment (Section 41(1) and (3), Equality Act 2010).

Direct gender reassignment discrimination

Direct gender reassignment discrimination occurs where, because of gender reassignment, a person (A) treats another (B) less favourably than A is treated or would treat others.

Vicarious liability and the "reasonable steps" defence

For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval. Therefore, an employer can be vicariously liable for acts of discrimination committed by an employee.

However, the employer will avoid vicarious liability if it can show that it took "all reasonable steps" to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act.

Decision

Use of gendered swearword to insult a transgender member of staff could be discriminatory

A majority of the employment tribunal panel found that the incident had not occurred. Therefore, the claimant’s discrimination claim based on this allegation could not succeed. However, in reaching this conclusion the tribunal accepted that, if the incident had occurred, this would have been sufficient to establish a prima facie case of gender reassignment discrimination. The panel's experience was that the relevant swearword was used to apply to men, and that there were equivalent but different swearwords that were specifically used in common parlance to insult women. Therefore, the term was not gender neutral.

The claimant had not taken "all reasonable steps"

Although the claimant’s discrimination claims failed, the employment tribunal nevertheless considered whether the Respondent could rely on the "reasonable steps" defence and it found that the Respondent had not taken all reasonable steps to prevent gender reassignment discrimination. The employment tribunal acknowledged that the Respondent had taken some steps. For example:

• it had equal opportunities and harassment policies;
• operated a "zero tolerance" in the enforcement of these policies;
• the equal opportunities and harassment policies were shared with agencies that supplied contract workers before any individuals were engaged and were part of the Respondent’s induction process;
• staff were encouraged to report any concerns; and
• the claimant’s manager had investigated the concerns.

However, the tribunal found that the following additional steps could have been taken by the Respondent:

• the policies were not up to date. The Respondent’s policies were last updated in 2007;
• the policy did not make clear that it applied to agency workers;
• the policy should focus on both equality and inclusion, and comply with ECHR code of practice;
• ensure that its policies are readily available to staff and ensure that they were understood;
• regular refreshed training;
• setting up employee representative groups, for example an LGBTQ+ group; and
• raising awareness of equal opportunities generally, but especially transgender awareness.

It was held by the employment tribunal that these additional steps were reasonable for the Respondent to take.

Comment

Whilst the claimant was not successful in this case and this is not binding on other employment tribunal  cases, this case provides helpful guidance and examples that employers should take to raise awareness of equality and inclusion issues in the workplace.