A landmark court ruling has boosted employment lawyers’ chances of protecting ‘sex change’ workers from harassment and unfair dismissal.
Birmingham Employment Tribunal ruled that a ‘gender fluid’ worker, Ms Rose Taylor, suffered direct discrimination, victimization harassment and constructive dismissal at Jaguar Land Rover Ltd.
Rose Taylor was in a process of changing from male to female from 2017 after starting work as an engineer 20 years ago.
Her performance was not an issue. Reviews of her work, including one before she lost her job, was that she was a ‘high performer and regarded as being very competent at her job’.
Yet, insults from colleagues began after Rose Taylor started wearing dresses and seeking to use female toilets. She went to work sometimes as male and other times as female as part of her transition.
She felt her employment rights were not adequately supported by her employer and left her job in June 2018. In September 2018, supported by employment lawyer, she lodged a case of constructive dismissal and breaches of the Equality Act.
Gender fluidity
The tribunal rejected Jaguar Land Rover’s claim that people who identified as gender fluid or ‘non-binary’ were not protected under the Equality Act 2010. Jaguar was forced to pay £180,000 in a settlement agreement which does not include a legal cost.
In a written judgement in December 2020, the Tribunal provided employment law advice on the relevance of Section 7(1) of the Equality, which protects employees undergoing a medical sex-change operation. The Tribunal stated: ‘…in terms of gender-reassignment, the intention was to make it clear that a person need not intend to have surgery, or indeed ever have surgery, in order to identify as a different gender to their birth.’
Rose had told her employer that she was suffering from mental stress due to harassment. This included insensitive remarks from colleagues such as asking her whether her female clothes were for Halloween and telling her she had ‘cracking legs’.
The tribunal heard that in response to Rose’s complaints about abuse, Jaguar’s human resources said she should not be so sensitive, no allowances should be made concerning a dress code and she was asked ‘What do you want them to call you?’
Employment law aims to protect a woman employee against unfair treatment. Under the Equality Act 2010, it is unlawful for an employer to treat unfavorably, compared to others, an employee on the basis of his or her sex. Also, it is unlawful for a woman to discriminate against another woman because of her sex, and for a man to discriminate against another man because of his sex. Employers must not discriminate as a result of marriage, civil partnership, pregnancy, maternity, or because an employee intends to undergo, is undergoing or has undergone gender reassignment.
Furthermore, an employer cannot keep pay arrangements secret in order to hide gross gender inequalities in their organization. Pay should, typically, be the same for workers of one gender as it is for the other. This applies if an employee is doing work that is similar to others if a formal evaluation concludes that work an employee does is similar to others or if an employee’s work is of equal value compared to others. The law, though, recognizes genuine reasons that can explain unequal pay.
