Transgender person wins Employment Tribunal

[ProfessorSprout]

assets.publishing.service.gov.uk/media/5a7aed66ed915d670dd7f91e/Miss_A_de_Souza_E_Souza_v_Primark_Strores_Ltd_-2206063-2017-_Final.pdf

Very interesting case (I’m in HR). Primark have really messed up here to be honest (poor investigations and actions against those who have behaved very badly).

But what I’ve found interesting is that the recommendations regarding transgender policies and education. With being in HR, I struggle with this and it crossing with my own opinions on transgender women/men. At what point does the (employment) law apply if someone self ID’s.

This is a better summary of the case

m.belfasttelegraph.co.uk/business/store-failed-to-take-the-grievances-of-a-transgender-staff-member-seriously-36612162.html

I'm in HR too. This really highlights the impracticality of self ID. A passport is mandatory ID for employment checks. This person didn't have one after 16 years. Are self IDs going to bother? The onus is on everyone else in the on boarding process to never ever refer to the name on your passport? Despite it being confidential that you have changed your name/sex? How do those two opposing requirements work? Tribunals are notorious for setting bad precedent, this is yet another one.
From the case report.
Fact findings

1. The claimant is a transgender woman. Approximately 16 years ago, she began dressing as a woman on a permanent basis. At the time of her employment with the respondents, her official first name on her passport and national insurance was still ‘Alexander’ ie her birth name, although she went by the name ‘Alexandra’.

I do not condone the bullying at all.

And there's the problem. An appalling situation where an employee was dreadfully bullied and Primark sat on their hands and failed to act.

Resulting in a contradictory legal nightmare where practice is being determined by an individual's beliefs.....

@Mouthandtrousersall you have articulated what I feel so well, are you in my brain?! I’m just so conflicted that there is so much onus on the company to ensure a trans person is not discriminated against, but how can they do that if their passport states “he”.

And like you say, point 8 just confirms they started dressing as woman. Does that mean they should be treated as a woman or should / can an organisation request confirmation (gender reassignment certificate)?

And yes Rowdy, this is a nightmare for employment law.

@ProfessorSprout

I think HR are being gaslighted on this along with everyone else, us being mostly women and all.

The self ID argument works both way - it would be easier to get a passport without any obligation of proof. But this person hasn't bothered to prove anything to the tribunal or the employer for 16 years apparently. There is no requirement now for a GRA for discrimination to apply.

The protected characteristics get abused non stop in tribunals.

@Mouthandtrousersall not sure if you’re active on the CIPD communities but I really want to post this debate on there. It would go “poof” in a heartbeat as there are several transwomen ( HR people) as members.

I am fairly trans-critical, but some of the situations described in that second article really make it sound like that work-place was pretty toxic and regardless of the (trans)gender issues, some of it was outright harassment.

I mean spraying perfum at someone without asking if that's okay and telling someone they are "evil" and praying for them. Shitheads who do that to me would at least get a telling off.

@ProfessorSprout

I am not involved in them, no but I think you should post. I agree it will go mad, seems to be the nature of the beast. The line about not negotiating with terrorists spring to mind.

Access all areas demands conflicts with harassment as far as I am concerned, where is the respect for consent? The Credit Suisse Gender Expression policy is major question mark in this. Anti discrimination policies do not take precedence over everything else. A man in a dress is not at risk of harm in men's toilets in an investment bank in Canary Wharf. He is going in the women's toilets as a preference. He may well prefer the women's toilets but he has ruthlessly supressed any women's right to not have him in there. Why is that ok? Why are HR facilitating this?

I think this should be the subject of a judicial review.

I'm a lawyer.

Gender reassignment or the perception of it is protected by the Equality Act. For these purposes it doesn't actually matter if the individual is a trans woman or not. All that matters is that they were subjected to horrendous bullying, because they were transgender or because other staff thought they were, and Primark did naff all about it.

Self ID has nothing to do with it (in this particular case Primark accepted that the claimant had the protected characteristic of gender reassignment, they weren't arguing that she wasn't actually transgender.)

What appalling treatment she received. At the risk of centring myself inappropriately, I feel deeply sad that, as a GC Woman, my attitude to trans people is being compared to/conflated with the behaviours mentioned in this case. Nasty bullying is never OK, especially in the workplace. FFS what were Primark thinking?

@wiggypig

We know self ID was irrelevant to that case, I am projecting forward to the change in the law to make GRA certification easer and the impact this will have on behaviour and how HR processes can cope with that. This person was not motivated to change a passport but expected processes to accommodate the preferred gender. HR systems work on a single source of truth principle and the Passport ID is the single source of truth we use to populate systems. No one has worked out how to manage this. I guess this is a bit niche for mumsnett but the tribunal was very sweeping and has now given a precedent. This can now lead to claims for misgendering over systems errors, where it's unavoidable due to ID proof requirements. Unintended consequences.

I’m against self ID but all that sounds like a nasty case of bullying whatever the reasons behind it and it should have been dealt with by management.

Worrying judgement in my opinion.

All part of the pressure for women to pretend that a man is a woman or else. My sympathies are with the women who had to share work toilets with him. What choice did they have to defend their privacy from a biological and legal man who 'dressed like a woman' as the report puts it.

Some of the claims read very odd and without context.

It's NOT ABOUT THE TOILETS.

Employers are permitted to have a policy which separates loos by sex, if this is a proportionate means of pursuing a legitimate end. That's totally fine under the Equality Act.

However, if that employer's policy is that they do allow trans women to use the women's loo, and they do not need to separate the loos by biological sex, then they can't also allow their employees to harass trans women in the women's loo.

An employee who doesn't agree with the policy needs to approach HR to resolve it, not taunt the trans woman.

I think this decision was not only inevitably right in law, but also entirely morally correct. I'm gender critical and what happened to this employee was totally unacceptable.

Good. This might give other transgenders the confidence to stand up to this kind of harassment at work in rest of life. If you were in any doubt it does happen.

This might give other transgenders the confidence to stand up to this kind of harassment at work in rest of life if only women’s rights were so fiercely protected.

Except mouth that they dismissed the allegation of misgendering for systems error, and that no precedent was set since it wasn't an EAT decision.

WiggyPig
This general comment below is what I am referring to. HR will view this as a precedent.

General comments
140. All this may well have been prevented had there been proper systems from the outset to preserve confidentiality for transgender employees. We find it shocking that the respondents could not devise a way of keeping the claimant’s legal name off the core allocation sheets and out of the knowledge of her supervisors. The respondents ought to have been able to devise a system whereby only one or two people in HR and payroll were aware of the
claimant’s transgender status. In the event, several managers and
supervisors were made aware at a very early stage, but took no steps to ensure a confidential system was put in place. The respondents showed a complete lack of understanding from the beginning as to what was required.

There is no way for any HR system to keep a person's passport confidential? In such a way that the passport - whether that reveals birth name, or sex, or immigration status - is known to HR but those details don't go onto the core allocation sheets?

That can't be correct even on what is said in the decision, which is that the core allocation sheets didn't reflect what was on the passport but what was entered onto Primark's own "Workday" system where someone mistakenly changed her 'preferred' name back to her 'legal' name. See para 14, 16 and 17.

I've now read the original report linked above. I recommend others do.

It is completely bullshit.
Full of he said/she said. 'complainant claims colleague said xyz, colleague claims they said abc, we decided to believe complainant' over and over.

It is entirely probable that everyone immediately perceived the tim as male and hence ridiculous to talk of 'outing' a legal, biological man, with male status and male name on his ID documents.

Some of the findings are outrageous. Colleagues having a private conversation with no references to the tim, are overheard and assumed to be making references to him?

It's all nuts. TIMs should have the same rights as every other employee, but characterising things as bullying needs actual evidence.

The only thing to give me pause was the claim that someone described him as evil, which is unacceptable if it happened.

As I said the passport data is treated as the source of truth for all purposes. No-one changed the preferred name. The legal name field, which is populated first by data imported from the recruitment system, was overridden to match the legal name on the passport. This is standard practise in organisations using those systems. So the short answer is no, its not possible to keep your legal name confidential as it's the name the whole wide world uses to identify you!

Bullying is awful. I was bullied out of my last job by a Harvard educated female lawyer. Its endemic in the workplace. It's a human thing, HR can't stop it, we cannot control human behaviour! The HR function is predominantly administration. All we can do is sack people if we find out about it.

People will react badly to a man in the women's loos irrespective of the company policy. They may suppress it to avoid getting sacked but that doesn't mean they have agreed or consented to it.

The judgment seems reasonable.
The allegations which are upheld are clearly bullying/ harassment based on the claimant's transgender status.
The complaints of non-malicious misgendering, use of the claimant's legal name and outing are not upheld.

There is no justification for bullying someone because they are transgender. in the same way as there is no justification for bullying or harassing someone because they are gay/ black/ disabled/ female.