Law and Labour » Constructive dismissal

Gender reassignment includes non-binary and gender fluid persons

Law and Labour — Sun, 06 Dec 2020 20:01:13 +0000

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

Ms Taylor 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 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, [...]

Council loses constructive dismissal case over poor investigation

Law and Labour — Sun, 11 Jan 2015 11:39:06 +0000

A recent EAT case demonstrates how an employee may win a constructive dismissal claim if the employer fails to carry out a reasonable investigation because it assumes the employee has committed the misconduct alleged. It is also a useful reminder that, in cases of direct discrimination, it is important to identify the correct comparator before deciding whether an employee has been subjected to less favourable treatment.

The employee, Mr Austin, was Head of Finance at West Sussex County Council. In January 2012, a female colleague accused him of harassment. West Sussex began an investigation into the allegations, but mid-way through the investigation Mr Austin went on sick leave due to stress. In May 2012 he resigned from his job, having not returned to work from sick leave.

Mr Austin subsequently brought claims of constructive unfair dismissal and sex discrimination in the Employment Tribunal.

He argued that his dismissal was unfair because he had not been given a fair disciplinary hearing, West Sussex having effectively decided he was guilty when it learnt of his involvement in an earlier case of harassment at a previous employer.

The Tribunal found that Mr Austin had not been treated fairly during the disciplinary process.

He had been suspended for a month but not given the reasons for his suspension. The investigation carried out by West Sussex had been shallow and one-sided. They had failed to provide Mr Austin with any documentation nor had they interviewed witnesses suggested by him. When Mr Austin’s mental health had deteriorated, causing him to go on sick leave, West Sussex had not taken his stress and anxiety into account. They had scheduled disciplinary hearings despite knowing that he was too ill to attend. During the investigation, Mr Austin had raised a complaint about being bullied by his line manager. However, West Sussex had not carried out any investigation into this complaint and, by this omission, had failed to follow its own policies on investigating complaints.

In relation to the claim of direct sex discrimination, Mr Austin argued that West Sussex’s failure to investigate a complaint he had lodged, while at the same time investigating the complaint of his female subordinate, was discriminatory due to his sex. The Tribunal agreed that West Sussex had discriminated against him.

West Sussex accordingly appealed the Tribunal’s decision to the Employment Appeal Tribunal (EAT).

The EAT found that the Employment Tribunal had correctly decided the constructive unfair dismissal claim in Mr Austin’s favour. The procedural defects in West Sussex’s disciplinary procedure were such as to break the term of mutual trust and confidence that should exist between employer and employee.

However, the EAT found that that the sex discrimination claim had been wrongly decided because the Employment Tribunal had misunderstood the nature of the comparator in Mr Austin’s claim for direct sex discrimination. The Tribunal had relied upon a hypothetical comparator which it took to be a senior manager whose male subordinate had complained about his conduct when she managed him during leave by her regular line manager.

This was the wrong comparator, decided the EAT. Instead, the [...]

Lord Sugar’s Apprentice need not pay his legal bill

Law and Labour — Sat, 12 Oct 2013 09:32:31 +0000

Lord Alan Sugar’s failure to recover his legal costs despite his successful defence of an Employment Tribunal claim has highlighted how difficult it is to get the losing side in a Tribunal case to foot your legal bill.

Lord Sugar was successful in his defence of the constructive dismissal claim brought by Stella English, a former winner of the BBC television show The Apprentice. Click on the link to read our April 2013 article on this case.

Following the victory, Lord Sugar set about trying to get Stella English to pay £35,000 towards his legal bill, which had amounted to the substantial sum of £50,000. However, he failed in his bid. The Tribunal decided Ms English’s claim was not motivated by malice, therefore she should not have to foot Lord Sugar’s legal bill.

The position in the Employment Tribunal is unlike that in the civil courts where the losing party is often ordered to pay the legal costs incurred by the successful party. In the Employment Tribunal an order to pay costs is the exception rather than the rule.

To succeed in an application for costs, the applicant will have to show that the other party:

acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing or conducting of proceedings; their claim had no reasonable prospects of success; the party was in breach of an order or practice direction; or a hearing was postponed on the application of the party.

The test is a hard bar to hurdle and most parties fail to prove the existence of one of the above circumstances to the satisfaction of the Tribunal.

Lord Sugar’s Apprentice loses constructive dismissal claim

Law and Labour — Thu, 18 Apr 2013 15:19:48 +0000

A former winner of the BBC television show The Apprentice has lost her claim for unfair constructive dismissal at the employment tribunal.

Stella English, who won The Apprentice in 2010, brought a claim for unfair constructive dismissal against her employer Amshold, one of a group of companies owned by Lord Alan Sugar. She argued that her employer had breached the implied term of trust and confidence through a series of incidents that occurred during her employment, including an acrimonious meeting with Lord Sugar that took place in September 2011.

The tribunal found that the conduct Ms English complained of either did not occur or was not sufficient to damage the relationship of trust and confidence. It noted that despite this conduct she had entered into new contracts of employment with Amshold and with an associated company, Viglen.

The tribunal decided that she had not been entitled to end the employment contract and bring a claim for unfair constructive dismissal. It also found that, by entering into further contracts of employment with Amshold and Viglen, she had reaffirmed her commitment to her employers. The tribunal concluded that there had been no dismissal, only a resignation, and her claim accordingly failed.

This case is a reminder of how difficult it can be for an employee to succeed in a claim for unfair constructive dismissal. The onus lies with the employee to identify the relevant term that has been broken and to prove that the breach was sufficiently serious to entitle the employee to resign. Where it is alleged that the implied term of trust and confidence has been breached, the employee must show that the employer’s conduct was so serious as to destroy or seriously damage trust and confidence. It is also important that the employee resign promptly once a breach has been committed, otherwise their delay might be interpreted as acceptance of the employer’s conduct.

CASE Ms S English v Amshold Group Ltd, Employment Tribunal, 10 April 2013