16th September 2020
Brethertons’ client’s success in unanimous decision of the Employment Tribunal widening the protected characteristic of gender reassignment to include gender fluid and non-binary individuals.
This week, Brethertons’ Partner Sioban Calcott represented her client in an important case against Jaguar Land Rover Ltd, resulting in a unanimous decision in the Birmingham Employment Tribunal, ruling the protected characteristic of gender reassignment to include gender fluid and non-binary individuals.
On the 14th September 2020 Employment Judge Hughes handed down Judgment on liability in the case of Rose Taylor –v- Jaguar Land Rover Ltd (Case No 1304471/2018). A Remedy Hearing has been listed to take place on Friday 2 October 2020.
The Claimant was a longstanding engineer working in Jaguar Land Rover’s (JLR) plant. In 2017, Ms Taylor identified as gender fluid/non-binary, from which time she usually dressed in women’s clothing. Ms Taylor 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. JLR argued Ms Taylor, as gender fluid/non-binary, did not fall within the definition of gender reassignment under section 7 of the Equality Act 2010 (‘EqA’).
In the oral Judgment delivered over 6 hours, Employment Judge Hughes, sitting at the Birmingham Employment Tribunal, upheld Ms Taylor’s claims of victimisation, harassment, direct discrimination and constructive unfair dismissal. During submissions, there was reference to Hansard comments made during the Equality Bill parliamentary debates in 2009. It was noted that the Solicitor-General referred to a gender “spectrum” and that gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”. The Tribunal held it was “clear… that gender is a spectrum” and that it is “beyond any doubt” that the Claimant fell within the definition of section 7, EqA 2010. The implication of this Judgment is that other complex gender identities may also fall within the definition of gender reassignment under section 7, EqA 2010, where individuals propose to undergo a process of moving their gender identity away from their birth gender.
The Respondent’s statutory defence to the Claimant’s allegations failed and is recorded as being “totally without merit.”
Further, it is recorded “Having heard submissions on this point, this Employment Tribunal considers it appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings. Uncommonly these days, Judge Hughes further said “We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again.”
Sioban Calcott commented, “Oral evidence in Ms Taylor’s case was heard between 24th - 28th August 2020 and on the 1st September 2020. The case involved significant preparation and dealt with a number of key legal issues including and importantly, whether the Claimant had the protected characteristic of gender reassignment. Receiving the Judgment was particularly emotional, but extremely rewarding. Hopefully lessons will be learned by the Respondent and whilst it is a little late in Ms Taylor’s case, others will not suffer as she did.”
Barrister, Ms Robin Moira White of Old Square Chambers, instructed by Sioban Calcott on behalf of the Claimant commented “This is an important judgment, albeit at first instance, recognising for the first time the rights of a small number of individuals with complex gender identities. Once again, the courts have shown themselves willing to stand up for the rights of individuals in a manner which demands respect and admiration.”
Brethertons’ take great pride in supporting such a pivotal case in this area of law and are delighted with the outcome.
For more information on Brethertons’ Employment services, visit https://www.brethertons.co.uk/site/services/employment-law-solicitors/employment-law-employees/ or call 01295 270999 to speak to one of our friendly team today. We have offices in Banbury, Bicester and Rugby.