Ms Forstater subsequently lodged a claim at the Employment Tribunal alleging direct discrimination and harassment on grounds of belief.

A preliminary hearing was necessary to decide whether Ms Forstater’s views were capable of protection under the Equality Act 2010 as a philosophical belief.

The first step was to define Ms Forstater’s views. The Tribunal summed up these as a “gender-critical belief” that “sex is biological and immutable”.

Next, the five-part test from the case of Grainger plc v Nicholson was applied to determine whether Ms Forstater’s belief was capable of protection under the Equality Act. The Grainger test requires the belief to be:

The Tribunal found that all of the “Grainger criteria” applied except for the fifth criterion (“Grainger V”), therefore Ms Forstater’s views did not amount to a protected belief. Ms Forstater appealed this decision.

The EAT disagreed with the Tribunal’s decision. It held that Grainger V should only exclude “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. The EAT acknowledged that only a very few beliefs would hit that threshold. Of Ms Forstater’s views, the EAT said:

It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Employment Appeal Tribunal

Anticipating that its judgment could be open to misinterpretation, the EAT took the unusual step of making its position on transgender issues clear. It stressed that its findings did not mean it was expressing any views on the merits of either side of the transgender debate. It said the judgment was not licence for persons to “misgender” trans persons (use non-preferred pronouns or gender) with impunity. The EAT pointed out that the Equality Act continues to prohibit harassment on grounds of gender reassignment.

In this ruling, the EAT has set a high threshold for the operation of Grainger V. It deems only the most abhorrent views or those capable of inciting others to be unworthy of protection. Some will feel that the threshold has been set far too high.

It remains to be seen whether CGD will appeal the decision to a higher court. [...]]]> http://lawandlabour.com/gender-critical-views-were-part-of-protected-belief/feed/ 0 http://lawandlabour.com/gender-reassignment-includes-non-binary-and-gender-fluid-persons/ http://lawandlabour.com/gender-reassignment-includes-non-binary-and-gender-fluid-persons/#comments Sun, 06 Dec 2020 20:01:13 +0000 http://lawandlabour.com/?p=2704 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.

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.

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.

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, [...]]]> http://lawandlabour.com/gender-reassignment-includes-non-binary-and-gender-fluid-persons/feed/ 0