Gender-fluid and non-binary employees are protected under the Equality Act 2010

Gender-fluid and non-binary employees are protected under the Equality Act 2010

Attorney Generals opinion could mean large historic liabilities for Gig economy workers holiday pay

In the landmark case of Taylor v Jaguar Land Rover, the Tribunal has held that the protected characteristic of ‘gender reassignment’ in section 7 Equality Act 2010 (Equality Act) should cover individuals who identify as gender-fluid and non-binary and not just individuals who have undergone medical gender reassignment.

The facts

The Claimant worked for Jaguar Land Rover (Jaguar) as an engineer for over 20 years. She first informed her employer that she identified as gender-fluid/non-binary in 2017.

The Claimant subsequently suffered harassment and discrimination after beginning to attend work in women’s clothing. She was subjected to insults from colleagues and managers and also found that the workplace did not accommodate her needs, for example in relation to her use of the toilet facilities on site. As a result, the Claimant tried repeatedly to initiate diversity and inclusion initiatives at Jaguar.

Eventually the abuse led the Claimant to issue a claim at the Employment Tribunal. She claimed harassment, direct discrimination, constructive unfair dismissal and victimisation on the grounds of gender reassignment.

Jaguar defended the claim by arguing that the Claimant did not have the required protected characteristic of gender reassignment because she described herself as non-binary or gender fluid.

The decision

The Tribunal held, unanimously, that the Claimant was protected because, irrespective of how she described herself at any given time, she was on a ‘journey’ of transition. The Tribunal confirmed its view that gender is a spectrum and also clarified that it was not necessary for the Claimant to be undergoing a medical process in order to be on such a journey of transition. The Claimant therefore succeeded in all of her claims.

The Tribunal also awarded aggravated damages to the Claimant in light of how badly she was treated and how insensitive Jaguar were to her claim. She was awarded £180,000.

The Tribunal also said that Jaguar should have done more to educate its employees when providing diversity and inclusion training.

What does this mean for employment law and employers?

This is a landmark ruling as it broadens the protected characteristic of ‘gender reassignment’ as well as demonstrating how seriously Tribunals will take this type of discrimination in the workplace.

Employers should review their existing policies and, where necessary, draft new policies to seek to ensure that the attitudes of the business reflect the current standards around equality and inclusion.

Practically, this means that employers should pay specific attention to their equal opportunities and anti-bullying policies to ensure that they are supportive, flexible and fit for purpose. They should also provide training on diversity and inclusion to employees at all levels.

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View profile for Emily HockenEmily Hocken

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