{"id":216792,"date":"2023-10-21T13:24:21","date_gmt":"2023-10-21T13:24:21","guid":{"rendered":"https:\/\/dominiclevent.com\/blog\/?p=216792"},"modified":"2023-10-21T13:24:21","modified_gmt":"2023-10-21T13:24:21","slug":"transgender-discrimination-what-to-consider-employment-litigation-tribunals","status":"publish","type":"post","link":"https:\/\/dominiclevent.com\/blog\/transgender-discrimination-what-to-consider-employment-litigation-tribunals\/","title":{"rendered":"Transgender Discrimination \u2013 What To Consider – Employment Litigation\/ Tribunals"},"content":{"rendered":"


\n<\/p>\n

For the purposes of the Equality Act 2010, anything done
\nby an employee over their employment is treated as having also been
\ndone by the employer.<\/strong><\/p>\n

\n

An employment tribunal considered whether it was discriminatory
\nto use a gendered swearword to insult a transgender staff member,
\nand also what might amount to “a reasonable steps
\ndefence.”<\/p>\n

Facts<\/h3>\n

Miss Fischer, a trans woman, (the claimant) was an agency worker
\nengaged as a bus driver by London United Busways Ltd (the
\nRespondent). The Respondent terminated her engagement after three
\nmonths. The claimant subsequently brought a claim of direct gender
\nreassignment discrimination under the Equality Act 2010. One of the
\nthree alleged incidents of discrimination forming part of the
\nclaimant’s claim was that a colleague in her depot had called
\nher a “w….r” while they were at work. She alleged that
\nthis was less favourable treatment because of her gender
\nreassignment and that the Respondent was vicariously liable for it,
\nas it had occurred during the course of the colleague’s
\nemployment. The Respondent’s position was that this incident
\nhad not occurred, but even if it had, the Respondent was not
\nvicariously liable because it had taken all reasonable steps to
\nprevent the incident.<\/p>\n

The legal bit<\/h3>\n

Protection of contract workers from
\ndiscrimination:<\/strong><\/p>\n

It is unlawful for a principal to discriminate against or
\nvictimise a contract worker:<\/p>\n

    <\/p>\n
  • as to the terms on which the principal allows the worker to do
    \nthe work;<\/li>\n


    \n <\/p>\n

  • by not allowing them to work or to continue to work;<\/li>\n


    \n <\/p>\n

  • in the way in which it affords them (or by refusing or
    \ndeliberately not affording them) access to any benefits; and<\/li>\n


    \n <\/p>\n

  • by subjecting them to any other detriment (Section 41(1) and
    \n(3), Equality Act 2010).<\/li>\n

    \n<\/ul>\n

    Direct gender reassignment discrimination<\/strong><\/p>\n

    Direct gender reassignment discrimination occurs where, because
    \nof gender reassignment, a person (A) treats another (B) less
    \nfavourably than A is treated or would treat others.<\/p>\n

    Vicarious liability and the “reasonable steps”
    \ndefence<\/strong><\/p>\n

    For the purposes of the Equality Act 2010, anything done by an
    \nemployee in the course of their employment is treated as having
    \nalso been done by the employer, regardless of whether the
    \nemployee’s acts were done with the employer’s knowledge or
    \napproval. Therefore, an employer can be vicariously liable for acts
    \nof discrimination committed by an employee.<\/p>\n

    However, the employer will avoid vicarious liability if it can
    \nshow that it took “all reasonable steps” to prevent its
    \nemployee committing a particular discriminatory act or committing
    \nthat type of discriminatory act.<\/p>\n

    Decision<\/h3>\n

    Use of gendered swearword to insult a transgender member
    \nof staff could be discriminatory<\/strong><\/p>\n

    A majority of the employment tribunal panel found that the
    \nincident had not occurred. Therefore, the claimant’s
    \ndiscrimination claim based on this allegation could not succeed.
    \nHowever, in reaching this conclusion the tribunal accepted that, if
    \nthe incident had occurred, this would have been sufficient to
    \nestablish a prima facie case of gender reassignment discrimination.
    \nThe panel’s experience was that the relevant swearword was used
    \nto apply to men, and that there were equivalent but different
    \nswearwords that were specifically used in common parlance to insult
    \nwomen. Therefore, the term was not gender neutral.<\/p>\n

    The claimant had not taken “all reasonable
    \nsteps”<\/strong><\/p>\n

    Although the claimant’s discrimination claims failed, the
    \nemployment tribunal nevertheless considered whether the Respondent
    \ncould rely on the “reasonable steps” defence and it found
    \nthat the Respondent had not taken all reasonable steps to prevent
    \ngender reassignment discrimination. The employment tribunal
    \nacknowledged that the Respondent had taken some steps. For
    \nexample:<\/p>\n

      <\/p>\n
    • it had equal opportunities and harassment policies;<\/li>\n


      \n <\/p>\n

    • operated a “zero tolerance” in the enforcement of
      \nthese policies;<\/li>\n


      \n <\/p>\n

    • the equal opportunities and harassment policies were shared
      \nwith agencies that supplied contract workers before any individuals
      \nwere engaged and were part of the Respondent’s induction
      \nprocess;<\/li>\n


      \n <\/p>\n

    • staff were encouraged to report any concerns; and<\/li>\n


      \n <\/p>\n

    • the claimant’s manager had investigated the concerns.<\/li>\n

      \n<\/ul>\n

      However, the tribunal found that the following additional steps
      \ncould have been taken by the Respondent:<\/p>\n

        <\/p>\n
      • the policies were not up to date. The Respondent’s policies
        \nwere last updated in 2007;<\/li>\n


        \n <\/p>\n

      • the policy did not make clear that it applied to agency
        \nworkers;<\/li>\n


        \n <\/p>\n

      • the policy should focus on both equality and inclusion, and
        \ncomply with ECHR code of practice;<\/li>\n


        \n <\/p>\n

      • ensure that its policies are readily available to staff and
        \nensure that they were understood;<\/li>\n


        \n <\/p>\n

      • regular refreshed training;<\/li>\n


        \n <\/p>\n

      • setting up employee representative groups, for example an
        \nLGBTQ+ group; and<\/li>\n


        \n <\/p>\n

      • raising awareness of equal opportunities generally, but
        \nespecially transgender awareness.<\/li>\n

        \n<\/ul>\n

        It was held by the employment tribunal that these additional
        \nsteps were reasonable for the Respondent to take.<\/p>\n

        Comment<\/h3>\n

        Whilst the claimant was not successful in this case and this is
        \nnot binding on other employment tribunal cases, this case provides
        \nhelpful guidance and examples that employers should take to raise
        \nawareness of equality and inclusion issues in the workplace.<\/p>\n<\/div>\n

        The content of this article is intended to provide a general
        \nguide to the subject matter. Specialist advice should be sought
        \nabout your specific circumstances.<\/em><\/p>\n


        \n
        Source link <\/a>
        \n        \"\"<\/a>
        \n