Transgender Discrimination – What To Consider – Employment Litigation/ Tribunals

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.