Employers need to remain alert to issues relating gender reassignment. The complex and emotive issue of gender identity has been well aired in the press, particularly earlier this year with the UK Government’s decision to block Scotland’s Gender Recognition Reform Bill.
The presence of gender reassignment as one of the nine protected characteristics under the Equality Act is not a new concept. However, gender identity continues to challenge employers, particularly in terms of what can/cannot be said or done. A recent example of what not to do can be taken from the London Employment Tribunal case of Miss AB v Royal Borough of Kingston upon Thames.
Miss AB transitioned her gender on 1 July 2020 and told her employer some 8 months in advance of this. She complained that she was not given support by her employer and that it failed to implement suitable policies. Miss AB alleged that there was a change in attitude towards her following the transition. In particular, during an email exchange where she had raised concerns about the safety of lighting on a project, one of the senior people stated (about Miss AB) “or do you want her to get away with a hissing fit again?” This was followed by an instruction to Miss AB that she should not speak directly to councillors and a reprimand when she sent an email without having it checked by her manager.
Miss AB responded to the reprimand stating “I feel since my transition, I have been singled out on a witchhunt and if you wish me to resign I will do this on grounds of constructive dismissal and secondary discrimination, I will not be bullied and treated in a demeaning manner act now question later is how you wish to proceed the care of duty and its CDM end of !!”
Rather than investigating her concerns, Miss AB’s line manager accused her of making baseless allegations and demanded an apology from her. The employer attempted to explain the lack of investigation as being due to Miss AB not being clear that her complaint was formal. This did not impress the tribunal who found that, regardless, it should have been investigated.
Miss AB also faced significant challenges in having her employer change her name on their systems after her transition, such that she was still referred to under her pre-transition name. This practice was referred to as deadnaming. In particular, it took the council 2 years from her transition to update her door pass to the correct name. She needed this pass to enter the building and access the printers. Similar issues arose in respect of her name on the staff directory, vehicle pass and pension records. When Miss AB did eventually gain access to the building, her locker had a post-it note with her deadname scored out and replaced with her new name.
The tribunal concluded that Miss AB had been treated less favourable because of the protected characteristic of gender reassignment. In particular, she had been directly discriminated against on all of the deadnaming incidents, the delay in escalating her complaint, the demand for an apology when she complained. Medical evidence demonstrated the significant impact which this treatment had on Miss AB’s health, suggesting that she had suffered a huge trauma as a result of bullying. The tribunal awarded her the sum of £21,000 plus interest (totalling £25,423) for injured feelings.
This case demonstrates the importance of getting the basics right when an individual transitions. Employers should take all reasonable steps to engage with the individual, ensure that they feel safe and that their new status is respected.
If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.