Is your business ready to handle gender fluidity issues?

I recently attended an enlightening seminar presented by Robin Moira White who, in 2011, became the first barrister to transition from male to female in practice at the discrimination bar. The subject of the seminar was September’s employment tribunal decision of Taylor v Jaguar Land Rover, in which Robin represented the successful claimant.

The tribunal awarded the gender fluid claimant £180,000 in damages for discrimination and bullying she experienced in the workplace. In addition, in a separate costs hearing, the same tribunal has just ordered Jaguar Land Rover to pay 25% of the claimant’s legal bill on the grounds that it had attempted to ‘defend the indefensible’. Such awards of costs in the tribunal are almost as rare as hen’s teeth, so this is a significant decision that demands that employers sit up and take notice.

Ms Taylor, having identified as gender fluid/non-binary, usually dressed in women’s clothing. Ms Taylor claimed that she was subsequently subjected to insults and abusive jokes at work, suffered difficulties with the use of toilet facilities and lacked sufficient managerial support.

Under the Equality Act 2010, a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing, or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.  Noting that the question of whether a gender fluid/non-binary person fell within the protection of the Act was a novel point of law, the tribunal held that Ms Taylor was indeed covered. In other words, the tribunal ruled that a person can be anywhere on the transitioning scale from making the decision to commence the process, all the way through to having completed the process (and anywhere in between) to be protected from discrimination.

Although this is not binding on other tribunals, it is highly persuasive and also difficult to see how the decision is open to serious challenge. Further, it sends a powerful message to all employers that it is simply not enough to have in place an equal opportunities policy that sets out the company ethos on treating people equally and with dignity, regardless of any protected characteristic they may have. Far more is required than that, if the employer is to rely on the potential defence to a discrimination claim that it took “all reasonable steps to prevent [discrimination] from taking place”.

Active steps must be taken to ensure staff at every level are given effective training on how to avoid discrimination (inadvertent or otherwise) and that effective support is in place for those who do experience ill treatment, if an employer has any chance of having a defence.

In this case, the tribunal commented that they “had not seen a wholesale failure in an organisation of this size in [their] collective experience as an industrial jury.’ Further, they ‘thought it was astounding that there was nothing in the way of proper support, training and enforcement on diversity and equality until the claimant raised the issue in 2017, bearing in mind how long the legislation has been in force.’

Damning comments indeed about one of the biggest employers in the West Midlands, with adverse publicity potentially even more costly than the compensation and legal costs bill incurred.

Of course, it is true to say that the size of an employer’s administrative resources will always be a relevant factor in determining how far it is expected to go to implement diversity measures, but it is clear that merely having a policy in place will not be enough for any employer, no matter how small. This is especially the case in relation to gender fluidity issues which are complex and wide-ranging.

Even if you think your business has everything covered from a diversity and equal opportunities perspective, it is still worth giving some thought to the following questions:

• Does my Equal Opportunities Policy include practical procedural steps to address diversity issues, including gender fluidity (including at the recruitment stage)?
• Would employees know where to turn if they were experiencing bullying or harassment related to gender fluidity or any other protected characteristic (e.g. do you have an effective Dignity at Work policy)?
• Are all managers coached in how to address such issues and staff at all levels trained to avoid discriminatory behaviour?
• Have you given any thought to how such things as toilet facilities might be managed for gender-fluid or non-binary employees? Bearing in mind that being gender fluid or non-binary might be a very different experience from one person to the next, is there sufficient flexibility built into your HR arrangements to cope with this?
• Have you given any thought to the way in which gender-fluid or non-binary employees may wish to be described or addressed?

If you would like support, advice or assistance on this or any employment matter, please contact Peter Orton by email at [email protected]