Employment Law Update – Gender reassignment under Equality Act 2010

An employment tribunal has recently considered whether a gender fluid/non-binary employee falls within the definition of gender reassignment in order to benefit from protection under the Equality Act 2010.

Taylor v Jaguar Land Rover ET1304471/2018

Facts

The claimant worked as an engineer for the company for almost 20 years. She began identifying as gender fluid/non-binary in 2017 and usually dressed in female clothing. She was subjected to insults and abusive jokes in the workplace and experienced problems in relation to the use of toilet facilities. She pursued claims of harassment, direct discrimination and victimisation on the ground of gender reassignment, in addition to claiming constructive unfair dismissal. Her employer resisted the claims on the grounds that she did not fall within the definition of gender reassignment under the Equality Act 2010.

Employment tribunal decision

The tribunal upheld the claims, finding that the claimant’s status as gender fluid/nonbinary fell within the definition of gender reassignment under the Equality Act 2010. With reference to comments recorded in Hansard during parliamentary debates on the Equality Bill in 2009, the tribunal considered gender to be a ‘spectrum’, with gender reassignment being a personal journey moving a gender identity away from birth sex. The tribunal held that it was beyond any doubt that the claimant was covered by the Equality Act 2010. At a subsequent remedies hearing earlier this month, the respondent agreed to pay the claimant £180,000 in compensation. In addition, the respondent consented to the appointment of a Diversity and Inclusion Champion and to the commissioning of a report by a recognised diversity organisation to investigate diversity and inclusion throughout the respondent’s business and setting out the necessary steps to becoming a “standard setting organisation” across all protected characteristics under the Equality Act 2010. An annual report into progress in achieving this will be produced for a period of five years.

Consequences

This is a first instance decision of the employment tribunal, meaning that it is not binding on other tribunals. However, it suggests that tribunals will be prepared to find that individuals with complex gender identities are protected under the Equality Act 2010 alongside those who elect to reassign their birth sex to a binary gender. The high level of compensation agreed by the respondent reflects the tribunal’s finding that aggravated damages were appropriate due to the egregious way the claimant had been treated and the insensitive stance taken by the respondent in defending the proceedings. Note, the tribunal’s full written reasons have not yet been published in this case.