It’s not often that the Employment Tribunal is the site of a landmark decision, but that is the case with Taylor v Jaguar Land Rover.

Facts

The case concerned an employee of Jaguar Land Rover (JLR), Rose Taylor, who joined the company in 1999. Ms Taylor was considered to be a high performer and very competent at her engineering job.

By 2017, Ms Taylor had notified JLR that she was gender-fluid and transitioning, but she 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.

Ms Taylor was subjected to a sustained campaign of harassment on grounds of gender reassignment over a long period. Although she submitted a grievance to JLR about her treatment, the company did not take any action to prevent the discriminatory treatment from occurring or continuing. Ms Taylor’s employment by JLR ended in June 2018 shortly after she had contacted Acas to start early conciliation.

Employment Tribunal

Following the ending of Ms Taylor’s employment, she 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 was whether a non-binary, gender-fluid person has the protected characteristic of gender reassignment. 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 decided 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.

We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex. Employment Tribunal

The Employment Tribunal considered it appropriate to award aggravated damages in this case because of the “egregious way” in which Ms Taylor was treated and the “insensitive stance” taken by JLR during the legal proceedings. This was in addition to a 20% uplift on damages due to JLR’s “complete failure” to comply with the Acas Code of Practice when handling the grievance. The parties eventually agreed compensation of £180,000.

Comment

The Employment Tribunal was scathing of JLR’s treatment of Ms Taylor which it found to be “unconscionable”. It took pains to stress that the fault did not rest with individual managers, but with the employer having a lack of tools or support to deal with the situation.

We thought it 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. Employment Tribunal

Photograph: “2018.05.19 Capital TransPride, Washington, DC USA 00484” by Flikr user Ted Eytan used under Creative Commons Attribution 2.0 licence