{"id":2329,"date":"2021-04-26T15:41:36","date_gmt":"2021-04-26T15:41:36","guid":{"rendered":"http:\/\/ramsaypaterson.co.uk\/legal-comment\/?p=2329"},"modified":"2021-04-27T12:26:29","modified_gmt":"2021-04-27T12:26:29","slug":"important-case-on-gender-and-discrimination-would-your-organisation-fare-much-better-than-jaguar-landrover","status":"publish","type":"post","link":"https:\/\/ramsaypaterson.co.uk\/legal-comment\/important-case-on-gender-and-discrimination-would-your-organisation-fare-much-better-than-jaguar-landrover\/","title":{"rendered":"Important case on gender and discrimination – would your organisation fare much better than Jaguar Landrover?"},"content":{"rendered":"

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<\/a> \u2013 the sections flagged are well worth reading.<\/p>\n

We\u2019ve considered the full Judgment (59 pages!) to lift some key learning points for employers \u2013 many of which are relevant to all types of discrimination. Whilst the Tribunal does not hold back in its criticism of Jaguar Landrover\u2019s 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.<\/p>\n

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.<\/p>\n

We refer in this article to employees, but individuals in the hybrid \u2018worker\u2019 category are equally entitled to protection against unlawful discrimination.<\/p>\n

The legal context<\/strong><\/span><\/h2>\n

The Equality Act 2010 identifies characteristics which are protected for the purpose of discrimination and these include gender reassignment.<\/p>\n

Section 7 of the Equality Act defines gender reassignment as follows:<\/p>\n

\u2018A 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\u2019s sex by changing physiological or other attributes of sex\u2019. <\/em><\/p>\n

There are a few elements to note here: no medical process is required for someone to be covered by this provision. Whilst a \u2018physiological attribute of sex\u2019 could include some form of surgery, it could also include, e.g., hair removal or other changes to the body. \u2018Other attributes of sex\u2019 could be hair style, make-up or clothing.<\/p>\n

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.<\/p>\n

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<\/em> steps to prevent that discrimination occurring. More on that below.<\/p>\n

What was the case about?<\/strong><\/span><\/h2>\n

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<\/span><\/a>.<\/p>\n

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 \u2018infotainment\u2019 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.<\/p>\n

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\u2019s 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 \u2018it\u2019 on a number of occasions, colleagues exclaiming e.g. \u2018oh my god\u2019, \u2018what the hell is that?\u2019 or asking \u2018Is this for Halloween?\u2019 upon seeing her dressed in women\u2019s clothing. She was also told \u2018not to be sensitive\u2019 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.<\/p>\n

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 \u2018nuisance\u2019 due to her complaints about their lack of support.<\/p>\n

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.<\/p>\n

In advance of a remedy hearing, compensation was agreed between the parties at \u00a3180,000 (excluding the costs award).<\/p>\n

Jaguar Landrover was severely criticised by the Tribunal, not only for the \u2018egregious\u2019 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 \u2018totally without merit\u2019. Its HR team did not escape criticism, the Tribunal stating: \u2018It is fair to say that the HR Team has not functioned properly or provided accurate and professional advice in this case\u2019<\/em>.<\/p>\n

The final conclusion in the Judgment (para 227) was striking:<\/p>\n

\u2018We 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\u2019s 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\u2019 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.\u2019<\/em><\/p>\n

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\u2019s experiences or similar would not be replicated?<\/p>\n

What\u2019s the legal significance?<\/strong><\/span><\/h2>\n

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 \u2018journey\u2019 of gender reassignment and so are protected by the Equality Act.<\/p>\n

What are the important learning points for all employers from this case?<\/strong><\/span><\/h2>\n

We believe that the starting point is acknowledging that expectations around gender identity are changing. It\u2019s 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 <\/span> <\/a>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.<\/p>\n

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:<\/p>\n