An Employment Tribunal has determined that the protected characteristic ‘gender reassignment’ under the Equality Act 2010 includes protection for non-binary individuals.
Peter Stanway, our BackupHR™ legal expert comments:
Protection under the Equality Act has looked at the concept of gender identity through a binary, medical lens, requiring an individual to have gone through, or be proposing to go through, a formal gender reassignment process. For several years, this view has been challenged as many people either do not identify traditionally, i.e. male or female, or are not transitioning, or going through a gender res-assignment process. A recent judgment moves away from the traditional approach, determining that protection can extend to those who identify as non-binary.
An Employment Judge in Birmingham has given judgment in the case of Taylor v Jaguar Land Rover (JLR), who was “subjected to insults and abusive jokes at work”, and had rest room access restricted. She received little support from the business.
Ms Taylor worked as an engineer at JLR for almost 20 years. She previously presented as male but in 2017, began identifying as gender fluid/non-binary and from which time, she usually dressed in women’s clothing.
She brought claims of harassment, direct discrimination and victimisation on the ground of gender reassignment. JLR argued Ms Taylor, did not fall within the definition of gender reassignment under s.7 of the Equality Act 2010. The Judge did not agree, and furthermore, considered it appropriate to award aggravated damages, because of the appalling way she was treated and the insensitive approach taken by JLR in defending the proceedings.
The implication of this judgment is that other complex gender identities may also fall within the definition of gender reassignment under s.7 of the 2010 Act, where individuals propose to undergo a process of moving their gender identity away from their birth gender.
It is not legally binding, so the legal position remains unclear; employers should, however, be alert to this judgment and begin to take steps to review their workplace, including their practices and procedures, to ensure that they would not be at risk of a similar discrimination claim. A main consideration should be the training that their employees receive on the anti-discrimination ethos of the organisation, which should contain an instruction not to harass colleagues. The language of gender diversity may present unfamiliar territory for many; however, it is of vital importance that employers continue to educate themselves, and their staff, to ensure they promote an understanding workplace, in line with modern standards around equality and inclusion.
- Dress codes can be worded neutrally, rather than having separate codes for men and women. This may help avoid a host of issues, including not just the exclusion of non-binary employees, but other potential discrimination claims.
- Ensure that employee records include diverse gender options (not just ‘male’ or ‘female’).
- Where an employee has advised that they identify as a different gender, it is important to take the time to understand as much as you can about the employee’s situation. Confusion can arise from misunderstanding about terminology and consequent misuse of terms.
- Arrange a meeting with the individual, to start discussions around their identity. Each person will have a different experience, so each situation should be addressed individually. Seek to learn more about their background, and it will provide a platform to explore issues, such as the pronouns or set of pronouns which others should use in relation to them.
- Ask the individual how and what they feel comfortable talking to their work colleagues about regarding their transition. A better understanding early on will help others to be more supportive, and hopefully may help to reduce curious but potentially intrusive, and hence, unwanted questions or comments.
- Assess any practical or logistical barriers, e.g. the need for gender-neutral toilets/ facilities. This can be a sensitive/controversial issue, so should be handled sensitively, considering whether employee consultation is appropriate.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.