Gender reassignment need not be a medical processKathleen BADA
The Canadian actor Elliot Page, who rose to fame in the movie Juno as Ellen Page, recently announced that he is transgender. In the past, he would not have been protected from gender reassignment discrimination unless he had undergone or was intending to undergo medical treatment to reassign his gender. However, that has now changed with the case of Taylor v Jaguar Land Rover.
In a landmark case, the Employment Tribunal decided that the protected characteristic of gender reassignment includes persons who identify as non-binary and gender fluid. It is likely that with time other complex gender identities will be deemed to fall within this protected characteristic.
The case concerned an employee of Jaguar Land Rover who described herself as “gender-fluid” and “transitioning”, but who had no intention of undergoing surgery to reassign her gender. She retained her male birth name but chose to dress in a male style on some days and a female style on other days. The employee was subjected to gender reassignment harassment over a long period. Although she complained to Jaguar Land Rover about her treatment, her employer did not take any action to prevent the harassment from occurring.
The claimant brought claims of constructive unfair dismissal and discrimination on grounds of sexual orientation and gender reassignment, and victimisation. The key question for the Tribunal to decide – whether a non-binary, gender fluid person has the protected characteristic of gender reassignment – was a novel point of law.
The definition of gender reassignment in the Equality Act describes a person who is undergoing or has undergone a process (or part of a process) to reassign their sex by changing “the physiological or other attributes of sex”. The Employment Tribunal confirmed that a person need not have (or intend to have) surgery in order to identify as a different gender to their birth sex. Starting to dress or behave like someone who is changing their gender or is living in the identity of the opposite sex would be sufficient to qualify for protection from gender reassignment discrimination. The claimant accordingly succeeded in her various claims.
The Employment Tribunal considered it appropriate to award aggravated damages in this case because of the “egregious way” in which the claimant was treated and the “insensitive stance” taken by Jaguar Land Rover during the legal proceedings. This was in addition to a 20% uplift on damages due to Jaguar Land Rover’s “complete failure” to comply with the Acas Code of Practice when handling the claimant’s grievance. The claimant’s agreed compensation amounted to the substantial sum of £180,000.
The Tribunal was particularly scathing of Jaguar Land Rover’s handling of the claimant’s complaints, stating: “We had not seen a wholesale failure in an organisation of this size in our collective experience as a jury.” It noted that “there was nothing in the way of proper support, training and enforcement on diversity and equality”.
Rather surprisingly for an employer of 50,000 staff, the company had no Equal Opportunities Policy. Its Dignity at Work Policy covered bullying and harassment, but staff had not been provided with any training on it. No-one had been designated to deal with diversity and equality issues.
Sustainable business growth demands forward thinking strategies around equality and diversity. Clear policies and related manger and employee training around diversity and inclusion are vital to ensure employers can reduce the type of risk that materialised at Jaguar Landrover which had such damaging a commercial and reputational impact.
If a chat to one of our expert team for advice on how to transform your diversity and inclusion practices, and for help with preparing appropriate policies don’t hesitate to reach out to us for a free consultation or contact us at email@example.com.