The recent case of Fisher v London United Busways Limited involved the use of a gendered swearword in respect of a transgender employee, which the Employment Tribunal accepted would establish a case of gender reassignment discrimination. The Employment Tribunal also provided useful guidance on the steps a Tribunal will expect an employer to have taken in order for it to rely on the “all reasonable steps” defence to discrimination claims (including implementing and updating key policies, providing training on inclusivity, raising awareness of equal opportunities and setting up representative groups, such as an LGBTQ+ group).
Miss Fisher, a transgender woman, was a bus driver for London United Busways Limited (“LUB”). After her termination, Miss Fisher brought a claim of direct gender reassignment discrimination against LUB. She alleged that she had been called a “w*nker” by a colleague (the “Incident”) and that this amounted to less favourable treatment because of her gender reassignment.
LUB denied liability, arguing that the Incident had not occurred and, even if it had, LUB had taken “all reasonable steps” to prevent the Incident from occurring (and therefore had a defence against the discrimination claim).
The Tribunal dismissed Miss Fisher’s claim, finding that the Incident had not occurred. However, the Tribunal accepted that, had the Incident occurred, the use of the swear word would have been enough to establish a case of gender reassignment discrimination on the basis that the word was used primarily to insult men (with there being equivalent but different swear words used to insult women) and therefore, it could not be considered gender neutral.
The Tribunal also found that LUB would not have been successful in relying on the “all reasonable steps” defence. Although the Tribunal acknowledged that LUB had taken some positive steps (such as investigating all complaints from Miss Fisher and having an equal opportunities policy), it found that LUB should have taken the following additional steps in the circumstances:
- Ensuring that its policies were kept up to date;
- Being clear that its equal opportunities policy applied to agency workers;
- Ensuring its policies focused on equality and inclusion, rather than just equality alone;
- Ensuring its policies were easily accessible to all its workers;
- Setting up representative groups (such as an LGBTQ+ group);
- Raising awareness of equal opportunities (especially in areas where additional education is necessary, such as transgender awareness);
- Ensuring any equal opportunities policies complied with the EHRC Employment Statutory Code of Practice; and
- Holding training days and workshops on inclusivity.
Laura Brown comments:
This is a useful case for a number of reasons. Firstly, it provides helpful guidance in cases where transgender individuals allege being misgendered, and highlights the importance of ensuring that staff are aware of what language is, and is not, acceptable when communicating with transgender individuals. Secondly, it demonstrates what employers would be expected to do in order to successfully rely on the “all reasonable steps” defence. Although the Tribunal’s guidance may seem a bit burdensome, taking these steps is likely to involve relatively limited time and expense, particularly when balanced against the positive impact they could have on the workforce and in avoiding discrimination claims.
If you are interested in arranging training on Equality and Diversity for your workforce, please contact a member of the team here, or visit our web page for further information.
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