Employment Law Cases

Gender reassignment: gender fluid/non-binary employees

Taylor v Jaguar Land Rover Ltd

A gender fluid/non-binary employee was covered by the definition of gender reassignment in the Equality Act 2010.

Under s.7 of the Equality Act 2010, a person has the protected characteristic of gender reassignment if they undergo any part of a process for the purpose of reassigning their sex by changing physiological or other attributes of sex (or if they propose to do so).

Background

Ms Taylor had worked at Jaguar Land Rover (JLR) for 20 years as an engineer. She had previously presented as male but in 2017 began identifying as gender fluid/non-binary, from which time she usually dressed in women’s clothing. She was subsequently subjected to insults and abusive jokes at work. She also suffered difficulties with the use of toilet facilities and managerial support. She brought claims of harassment, direct discrimination, and victimisation on the ground of gender reassignment as well as constructive dismissal. JLR argued Ms Taylor, as gender fluid/non-binary, did not fall within the definition of gender reassignment under s. 7.

Tribunal decision

In an oral judgment, the tribunal upheld her claims. It held it was ‘clear … that gender is a spectrum’ and that it is ‘beyond any doubt’ that Ms Taylor fell within the definition of s. 7. JLR’s defence was dismissed as ‘totally without merit’. The tribunal also considered it appropriate to award aggravated damages because of the ‘egregious way’ in which Ms Taylor was treated and the ‘insensitive stance’ taken by JLR. The tribunal also stated that it was ‘minded to consider making recommendations in order to alleviate [Ms Taylor’s] injury to feelings by ensuring [JLR] takes positive steps to avoid this situation arising again’. Compensation was also uplifted by 20% to reflect failure to comply with the ACAS code in relation to Ms Taylor’s grievance about short-term measures to assist her transitioning.

It has been reported that compensation of £180,000 was subsequently agreed at a remedy hearing.

Link to decision: https://www.bailii.org/uk/cases/UKET/2020/1304471_2018.html

Comment

Although this is only a first instance decision and not binding on any other tribunal it is very helpful as there has been some uncertainty as to whether the Equality Act 2010 is clear enough to protect gender fluid/non binary workers. In 2016 both ACAS and The Women and Equalities Select Committee recommended amending the protected characteristic of gender reassignment in the Equalities Act 2010 to read ‘gender identity’, to make it absolutely clear, but this was rejected by government.