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 http://lawandlabour.com/poor-reason-victimisation/ http://lawandlabour.com/poor-reason-victimisation/#comments Fri, 17 Jul 2015 11:48:30 +0000 http://lawandlabour.com/?p=2241 In a case where an Employment Tribunal found that an employee had been unfairly dismissed and victimised, the Employment Appeal Tribunal (EAT) has criticised the Tribunal for failing to make clear findings on the employer’s reasons for dismissal. The EAT decided that it was not apparent from the Tribunal’s judgment why it believed the employee had been dismissed because she had done a protected act rather than because of misconduct.

Ms Blake was a security guard at Leeds General Infirmary with more than 25 years’ service. While on a final written warning, she went on holiday without first getting the approval of her manager. She was disciplined by Leeds NHS Trust who dismissed her for gross misconduct.

Ms Blake complained to the Employment Tribunal that she had been unfairly dismissed and victimised by Leeds NHS Trust. She believed the real reason for her dismissal was her employer’s knowledge of protected acts she had carried out, namely assisting a colleague with a disability discrimination claim and an allegation that her employer had subjected her to sex discrimination. The Employment Tribunal upheld these claims and Leeds NHS Trust appealed to the EAT.

The EAT found that the Employment Tribunal had made mistakes in its handling of both the victimisation and unfair dismissal claims.

Regarding the victimisation claim, the EAT first considered whether the Tribunal had followed the correct steps in deciding if Ms Blake’s dismissal was because of a protected act. It noted that when deciding whether Leeds NHS Trust was motivated to dismiss Ms Blake because of the protected acts, the Tribunal should have carefully considered the “mental processes” of the disciplining officers. It was apparent that the Tribunal had failed to do this.

“There is a lack of finding and reasoning in the Employment Tribunal’s reasons concerning the ‘protected acts’ and the knowledge and beliefs…concerning them.” Employment Appeal Tribunal

“On key issues in the case the Employment Tribunal appears to have adopted its own view without identifying the Respondent’s reasons and asking whether they were reasonable.” Employment Appeal Tribunal

CASE Leeds Teaching Hospital NHS Trust v Blake, Employment Appeal Tribunal, 15 July 2015

Photograph: “Excluded” by Flikr user Markus Spiske used under Creative Commons Attribution 2.0 license