Ms. Fischer, a transwoman, was an agency worker engaged as a bus driver by LUB. When her engagement was terminated after three months, she brought a claim of direct gender reassignment discrimination. The alleged incidents of discrimination included that, while at the depot, a colleague had called her a "w****r." She alleged that this was a less favourable treatment because of her gender reassignment and that LUB was vicariously liable for it as it occurred during the course of the colleague's employment.
By a majority, the tribunal dismissed Ms. Fischer's discrimination claim. That said, the tribunal noted that it did not consider the insult "w****r" to be a gender-neutral term and accepted that if this was said to Ms. Fischer, it was insufficient in principle to establish a case of gender reassignment discrimination.
Although Ms. Fischer's discrimination claim failed, the tribunal nevertheless considered whether LUB could rely on the "reasonable steps" defence under the Equality Act and noted a number of additional steps that could have been taken by LUB, including:
- Making clear that its equal opportunities policy applies to agency workers.
- Ensuring its equal opportunities policies complied with the EHRC Employment Statutory Code of Practice, which included giving examples of what is and isn't appropriate behaviour, identifying who is responsible for the policy, and setting out details of monitoring and review procedures, and drawing up the policy in consultation with workers and any recognised trade union or other workplace representatives.
- Focusing on inclusion in its policies rather than on equality alone.
- Ensuring policies are readily available to staff and that they are understood.
- Raising awareness of equal opportunities generally, but especially transgender awareness.
- Setting up employee representative groups, for example, an LGBTQ+ group—the tribunal noted that, in an organisation the size of LUB, it was surprising that no such groups existed.
Practical Point
This is a tribunal decision, so it will not be binding on other tribunals.
The tribunal provided useful advice for employers on the "reasonable steps" they should take in order to raise awareness of transgender issues in the workplace to minimise the risk of future gender reassignment discrimination claims and to be able to defend such claims if they arise.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.