Landmark Equality Act employment tribunal rules on gender fluid individual

A gender-fluid Jaguar Land Rover engineer who faced insults and jokes from their colleagues has won a claim for harassment, discrimination and constructive unfair dismissal.

The landmark tribunal confirmed for the first time that protection under the Equality Act for employees undergoing gender reassignment extends to non-binary and gender-fluid individuals. This is a milestone in recognising the rights of non-binary and gender-fluid people to be protected from discrimination under the Equality Act 2010. Until now, it has not been clear whether non-binary people were protected by anti-discrimination legislation, which makes this employment tribunal judgment key in supporting future judicial decisions.

The employee had worked for the company for almost 20 years as an engineer, previously presenting as male. The employee began to identify as gender fluid in 2017 and started dressing in women’s clothing, which provoked insults and abusive jokes from colleagues. The engineer also suffered difficulties using toilet facilities.

The Claimant told the employment tribunal they had little support from the firm’s management, which did not allow the retraction of their resignation from the company in 2018.

The employer argued that the Claimant did not fall within the definition of gender reassignment under section 7 of the Equality Act because they were gender fluid/non-binary.

But the Claimant’s lawyer argued the Government itself referred to a gender “spectrum” during parliamentary debates about the Act. And the tribunal found in the Claimant’s favour and that they had the “protected characteristic of gender reassignment”.

The judge felt it appropriate to award aggravated damages “because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings”. The Claimant’s compensation was uplifted by 20% because of respondent’s failure to comply with the Acas Code of Practice in relation to the claimant’s grievance about short-term measures to assist in the process of transitioning.

Employers facing this issue should consider physical adjustments including gender-neutral toilet facilities and uniforms, and should be careful to discuss with employees any changes to personnel records, with a reminder that disclosure of their history will be controlled by them.