This is a more in depth article, explaining the implications for all employers of a recent Employment Tribunal case on transgender rights (circa 10 minute read). References to paragraph numbers are to the paragraphs in the full Judgment – the sections flagged are well worth reading.

We’ve considered the full Judgment (59 pages!) to lift some key learning points for employers – many of which are relevant to all types of discrimination. Whilst the Tribunal does not hold back in its criticism of Jaguar Landrover’s actions/inactions in this case, what struck us in reading its Judgment is that unless employers learn some serious lessons from this case, so many could easily find themselves in the same position.

This is a decision from a first instance Employment Tribunal, so is not binding on later Tribunals. However, the Judge in this case is very experienced and the case is widely considered to be well reasoned and likely to influence later decisions.

We refer in this article to employees, but individuals in the hybrid ‘worker’ category are equally entitled to protection against unlawful discrimination.

The legal context

The Equality Act 2010 identifies characteristics which are protected for the purpose of discrimination and these include gender reassignment.

Section 7 of the Equality Act defines gender reassignment as follows:

‘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’.

There are a few elements to note here: no medical process is required for someone to be covered by this provision. Whilst a ‘physiological attribute of sex’ could include some form of surgery, it could also include, e.g., hair removal or other changes to the body. ‘Other attributes of sex’ could be hair style, make-up or clothing.

If a person falls within this definition, then they are protected against the various forms of discrimination, in the same way as, for example, the protected characteristic of race.

An employer will be liable for any acts of unlawful discrimination by its employees (which are in the course of employment) unless the employer can show that it took reasonable steps to prevent that discrimination occurring. More on that below.

What was the case about?

This was a 10 day case heard in September 2020 by Birmingham Employment Tribunal. It was brought by Rose Taylor against her former employer, Jaguar Landrover. You can find the full judgment and reasons here.

The facts of the case against Jaguar Landrover are detailed, but in summary, Ms Taylor had worked for Jaguar Landrover for nearly 20 years, as a high performing engineer in its ‘infotainment’ department. Until 2017 she had presented as male, but in 2017 she approached her employer to explain that she was beginning a gender transition and at that time, characterised herself as gender-fluid or non-binary. At that stage she had no intention of undergoing surgery. Ms Taylor chose to wear female clothing on some days, but did not change her name during her employment.

Ms Taylor was highly committed to generally raising awareness on LGBT+ issues in the workplace and worked on this at Jaguar Landrover with the company’s consent. However, from the point of declaring she intended to begin a gender transition and began wearing different clothing, she suffered harassment from colleagues and contractors. Ms Taylor received treatment such as being referred to as ‘it’ on a number of occasions, colleagues exclaiming e.g. ‘oh my god’, ‘what the hell is that?’ or asking ‘Is this for Halloween?’ upon seeing her dressed in women’s clothing. She was also told ‘not to be sensitive’ by HR after raising concerns. This spanned over a year, until she resigned from her employment in 2018. Ms Taylor had raised her concerns numerous times with managers and HR, including as formal grievances, but she received little support and some actions made the situation worse.

After Ms Taylor had served notice of her resignation, she had initially tried to retract her notice after learning that her friend was joining the company and this may give her some support. Jaguar Landrover refused to allow Ms Taylor to retract her notice and the Tribunal later found this to be an act of victimisation, because managers had come to view her as a ‘nuisance’ due to her complaints about their lack of support.

Not only did Ms Taylor succeed in her claims of constructive dismissal and discrimination on grounds of gender reassignment (harassment, direct discrimination and victimisation), she was also awarded aggravated damages. At a costs hearing this year, Jaguar Landrover was also ordered to pay 25% of her legal costs, which is still rare in tribunal proceedings.

In advance of a remedy hearing, compensation was agreed between the parties at £180,000 (excluding the costs award).

Jaguar Landrover was severely criticised by the Tribunal, not only for the ‘egregious’ way it treated Ms Taylor during her employment, but also for its conduct during the legal proceedings, including its insistence on continuing an element of its defence which was ‘totally without merit’. Its HR team did not escape criticism, the Tribunal stating: ‘It is fair to say that the HR Team has not functioned properly or provided accurate and professional advice in this case’.

The final conclusion in the Judgment (para 227) was striking:

‘We had not seen a wholesale failure in an organisation of this size in our collective experience as an industrial jury. This case came about as a result of the culture of the organisation. The culture is not aligned to the Respondent’s policies, agreements, or statements of intent. This is a lesson that has to be learnt at the highest level. It 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. We were pleased that the Respondent sent some of its senior managers to hear our oral reasons, and we are hopeful that this will lead to meaningful change.’

Whilst no right minded employer would condone the treatment Ms Taylor received, how many employers have really done enough in their organisations to educate people and raise awareness of issues around gender reassignment? Has your organisation invested sufficient time, energy and care into building a culture where the Ms Taylor’s experiences or similar would not be replicated?

What’s the legal significance?

In legal terms, the particularly interesting point in this case is that Jaguar Landrover had attempted to avoid liability for discrimination by arguing that Ms Taylor did not have the protected characteristic of gender reassignment. They argued this because she had described herself as non-binary or gender fluid, rather than intending to transition from male to female. In addressing this point (para 178), the Tribunal considered the original intentions of Parliament when enacting the protections in the Equality Act. The Tribunal decided that the intention was that gender reassignment was a spectrum moving away from birth sex and a person could be anywhere on that spectrum. Therefore, if a person considers themselves to be non-binary or gender fluid, they can still be on a ‘journey’ of gender reassignment and so are protected by the Equality Act.

What are the important learning points for all employers from this case?

We believe that the starting point is acknowledging that expectations around gender identity are changing. It’s likely that employees will increasingly expect to be open in the workplace about their own gender identity, even if they still face hurdles in this respect (see recent article in People Management). Unless employers actively take steps to ensure their organisational culture is more inclusive in this respect, they will face difficulties from both a human and legal perspective.

There are numerous takeaways for employers from the Taylor case. Whilst the tribunal shared these in the context of gender reassignment, most of these equally apply to all aspects of diversity and inclusion and discrimination. Here is a summary, with reference to the sections in the Judgment where you can read more detail:

• The ET Judgment made it very plain that the responsibility for preventing harassment at work lies with the employer. The emphasis is on prevention – not waiting to address it only if complaints are made. The Judgment stated ‘We wanted to make it absolutely clear that we would regard very dimly any attempt by the Respondent to suggest that the failings in this case were the responsibility of the individual managers…the Respondent did not give them the tools or support to deal with a situation such as this, which was woefully outside their area of expertise’.
• Employers need to be alert to the implications of the Equality Act as soon as an employee demonstrates an intention to move away from their birth gender, even if they consider themselves gender fluid or non-binary rather than transitioning to the opposite gender (and note employees may demonstrate their intention in lots of ways, with possibly no intention of undergoing any form of physical procedure). Transitioning could be usefully considered a journey, rather than just about the final intended destination.
• It’s never sufficient to just have an Equal Opportunities or Equality and Diversity Policy in place. These policies are no use to anyone if they’re hidden somewhere and managers and employees are not even aware of them (as was the case in Jaguar Landrover). Bring these policies to life by making sure everyone is aware of them and that managers at least (ideally everyone) has been trained on what they mean in practice.
• Don’t make the same mistake as Jaguar Landrover and assume that if an employee doesn’t wish to ‘name names’ in a complaint, there is nothing the employer can do. The company was severely criticised for this. The managers viewed harassment as a purely disciplinary matter, where the alleged perpetrator was named and, if found guilty, would be dealt with accordingly. The ET highlighted that wasn’t the only way to address the issue and other robust action could have been taken, such as a very clear communication to the entire workforce on the importance of treating everyone with respect and complying with the relevant policies (such as Dignity at Work). This could include a warning that behaviour that breaches this will be treated as a serious disciplinary matter. A similar message could be shared with contractors. The Tribunals said that apart from helping to prevent such behaviour occurring, such a strong signal of zero tolerance could provide support and comfort to anyone suffering from this.
• Harassment at work which has an impact on an employee’s health and wellbeing is a health and safety issue and should be treated as such, with sufficient seriousness.
• Whilst it may be appropriate to make a referral to occupational health to address issues such as stress and anxiety resulting from experiences at work, employers shouldn’t focus solely on this, as this is dealing with the symptoms of the problem rather than the cause. The cause itself needs to be addressed.
• Employers are encouraged by this case to put in place support mechanisms for employees with protected characteristics and designate an appropriate person to lead on equality and diversity issues.
• The Tribunal felt it was offensive to advise a transitioning person to use the disabled toilets, because at the very least, it suggests that their protected characteristic is a disability.
• Be mindful of actions which could constitute victimisation. Also, ensure that there is clear ownership of any decisions, together with a clear (and documented) rationale. Jaguar Landrover’s refusal to allow Ms Taylor to retract her resignation was interpreted by the Tribunal as an act of victimisation, linked to her ongoing complaints. The company’s position wasn’t helped by its managers not being clear on who actually took that decision and why.
• The Tribunal emphasised that one person can make a profound difference to someone else’s life. Employers should not therefore underestimate the importance that a single person can make – thus supporting the idea of having a clear lead for equality and diversity issues who is passionate to make a difference in this area and perhaps also putting in place mentors. This section on of the Judgment is wonderful to read – para 150. The Tribunal refers to a list of people they consider have made the world a better place.
• If your organisation has really done very little in practice to prevent discrimination occurring (beyond e.g. having suitable policies in place), there is very little chance of you successfully defending a claim on the basis that you ‘took reasonable steps’ to prevent discrimination occurring. This is often called the ‘statutory defence’ and is set out in section 109(4) of the Equality Act. Jaguar Landrover’s insistence on continuing to rely on this defence was criticised by the Tribunal.

It’s interesting that the part of the Judgment addressing remedy is much broader than just financial compensation (see page 59 of the Judgment). It includes a recommendation for Jaguar Landrover’s Board of Directors to read and discuss the full written Judgment, to appoint a Board member as a Diversity and Inclusion Champion, to commission a report from an external diversity organisation such as Stonewall to produce a report into what it can do to improve its culture in terms of diversity and inclusion, repeat this every five years and review progress every year.

This case offers so many practical lessons for all employers. It’s easy when addressing these issues for it to feel like a big ‘project’ which struggles to get to the top of the priority list, particularly in view of the challenges every employer has faced during the pandemic. We encourage you to start taking at least some steps without delay, for example, reviewing your policies and general communications to ensure these are inclusive (e.g. pronoun neutral), start exploring training options and specialist knowledge resources and, above all, finding ways to bring to life your policies on Diversity and Inclusion/Equal Opportunities. The starting point can be as simple as organising discussion groups. The key is that it’s better to start with small steps than leave it on the ‘to do’ list.

If you have any questions on this case and its implications for your organisation, or would like to discuss how to put its recommendations into practice, please do get in touch.