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.

I echo everything @wiggypig has said. I oppose self ID etc but whatever you think about trans politics, surely we can all agree transgender people are entitled to be treated with dignity and respect, which plainly did not happen here. The way she was treated was disgraceful.

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.

As you say, companies can choose not to do this. However, how many companies do you think these days would clearly state that transwomen on their premises are forbidden to use women's toilets?

I think not many and the number that would is decreasing. The problem is that the law is being left behind as a result of irresistible lobbying.

Horrific bullying. I’m glad she won.

Barracker that's the entire purpose of an employment tribunal, they hear the evidence and decide who, if anybody, to believe.

Oral evidence given at a tribunal IS "actual evidence." They don't accept anybody's evidence unequivocally. It's tested in court through cross examination, and the barrister instructed for Primark is described as a "leader in the field" with particular strength in cross examination. Any evidence tested by her will have been properly tested.

Assuming that the claimant must be lying just because she's trans, and that the panel must have pretended to believe her just because she's trans, really is transphobic.

@nauticant probably very few, but the employment tribunal is not the forum to revisit the company's policy.

TBF I peaked a while ago, but agree bullying is the pits (having worked in cheap retail it’s endemic there - you get a lot of power obsessed people who are absolute nobodies outside of the shop so take it out on others ) and I think the incidents described are basically fairly representative of the kind of shit that gets pulled - I was bullied and the negative behaviour went all the way up to senior store management. I’m glad the claimant won and respect their bravery in making the claim

This isn't someone who is self-ID for a bit of fun. They've been living as a woman for 16 years and then horrifically bullied at work. Primark were disgraceful.

I disagree entirely with viewing the bullying as appalling. It sounds awful.

And it's quite true that if the policy was to allow the transgender woman into the ladies, that's the end of it. They don't have to do that though. They chose to.

But. There is no doubt that we are seeing, timing again, transwomen exploiting their protected characteristic to force women to submit to dominance.

Without knowing exactly went on, all you can do is form a personal opinion.

Do women generally behave like that to someone who they consider benign? Several women?

Maybe. I'm sure everyone has a bullying story.

The only recourse is to force retailers to invoke the exemptions, so this doesn't come up.

The dead naming is a direct breach of EA law and is wholly unnecessary.

I do condemn bullying against transgender people, where it has actually taken place.

I simply disagree with some of the conclusions the tribunal reached, and certainly with some of the reasoning.

"Why would complainant lie?" Is not sufficient to err on the side of the complainant.

Hearing abstract words in someone else's conversation and concluding they must be talking about you, and a tribunal agreeing, is insane.

The tribunal upheld several complaints on huge supposition and bias.

Crikey. Only this week a prominent trans person claimed that TERFS were responsible for deaths, homelessness and hatred. It's imperative that claims are not taken at face value especially when there is no supporting evidence.

I repeat, I condemn bullying where it actually has taken place. I don't accept all claims of bullying without evidence, and where respondents refute the events claimed to have taken place.

I'm shocked they got £25,000 for mental distress. Much more than those who severed in the army who subsequently suffered PTSD. I knew someone who suffered a medical mishap; they removed the wrong testicle. He didn't get anything like that amount.

Bullying is horrible, but I'm with Datun on this.

served obviously. ffs

Hi wiggy and datun

Focusing on the toilets: if a female employee complains to HR that having a trans woman in the female loos is violating their dignity, demeaning, humiliating and creating a hostile work environment...

And asked for the exemption in the Equality act to be invoked in order to exclude the trans woman ...

Then do you think an ET would be persuaded that this is a proportionate means of achieving a legitimate aim.

And if the female employee is fobbed off then would she have a sex harassment claim against the employer?

In what way has a man, with male ID, a male name, who claims to have worn 'women's clothes' for 16 years 'living as a woman'?

Living as a transvestite perhaps.
But undoubtedly a man, and one who was so uninterested in 'living as a woman' that he couldn't be bothered to change name or ID in those 16 years.

It is not credible.

Why would complainant lie?" Is not sufficient to err on the side of the complainant

I admit I only skim read the judgment but where did the tribunal say that was sufficient? In 10 years as a barrister I have never heard any tribunal use this as sufficient reasoning to uphold a claim.

The tribunal (of 3) heard several days of evidence and reached the decision that it did based on that. Why are you so reluctant to believe it?

I ask because I am always having to defend the charge of GC feminists being inherently hostile to transgender people, but I wonder whether that is playing a part in reluctance to accept that this has happened?

I simply disagree with some of the conclusions the tribunal reached, and certainly with some of the reasoning.

Well, you didn't hear evidence, they did. They heard evidence from the bullies too and chose to believe the claimant.
This was a horrible case of bullying and transgender people are entitled to be treated with dignity and respect. It makes no difference what it says in the claimant's passport. None of my colleagues know what it says in my passport either. Nobody is entitled to harass or intimidate trans people and use language that they know will cause them upset, as was done in this case. Those women sound vile.

As others have pointed out, this has bugger all to do with self-ID and people who strongly disagree with the judgment are making themselves look transphobic I am afraid. I am gender critical, but I am strongly against any form of bullying or mistreatment in the workplace and this was clearly that.

Oh, I'm transphobic?

Rightho.

Have you read the judgement?

^Asking the claimant to move a large stack of baskets in the trolley
on 30 September 2016^

what's the issue here is it that the TW is a delicate lady flower now?

If two people call you "evil" I'm going to question your behaviour.

"Mr Ahmed outing the claimant in front of another member of staff""

It's not a disability right? They haven't disclosed medical history. It's just a fact about this person, a true fact.

The urine comment is legitimate bullying but everything else is just stuff the TW would prefer not to be true.

Those women sound vile.

Only one person is called a "Ms". I hope you aren't assuming everyone else's gender.

The women who bullied could well have been transgender, because as we all know transwomen are women.

Just to clarify, I cannot stand bullying in the workplace.

'"Mr Ahmed outing the claimant in front of another member of staff""

It's not a disability right? They haven't disclosed medical history. It's just a fact about this person, a true fact.'

It's data that the workplace only had by virtue of them being her employers. They had no right to share that data, under the Data Protection Act, if it wasn't otherwise in the public domain. In this situation, it wasn't in the public domain, because the claimant had been using their preferred name of Alexandra and preferred title of Miss. So she was outed as transgender by her manager using data that she had not given consent to be shared or used.

So she was outed as transgender by her manager using data that she had not given consent to be shared or used.

Is biological sex protected data, it's obvious to anyone with eyes in most cases. Is everything you say at an interview protected data? For example, if I say I am from Germany in an interview and then tell people at work I am from France and a manager overhears and says "Valentine's fart is from Germany" have they broken some data protection law? How is it different? Or does the law specifically cover birth sex?

@SusanBunch

As others have pointed out, this has bugger all to do with self-ID and people who strongly disagree with the judgment are making themselves look transphobic I am afraid

The OP and myself were discussing self ID in relation to this case because of what it indicates for HR process and systems management, and how to deal with the requirements of employment law, a core part of our job. Self ID or no self ID, this person effectively did self ID at work so the systems implications are identical . Plus The tribunal required huge amounts of changes in a short period of time!

So while you think its nothing to do with self ID the OP and I are thinking about it from a work perspective, if that's ok with you?

The OP asked specifically about self ID impacts, so you wafting in and saying there's nothing to discuss here is kinda rude, no?

Why don't you go and start another thread saying nothing here to look at?

Also shouting transphobic at us all is a bit shit to be honest. Fuck off.

Sigh. The judgement already notes that from his voice the colleagues had easily deduced his sex.

He is a man.
Biologically
Legally
Objectively

And this entire claim is founded upon the fact that his colleagues didn't pretend he was a woman convincingly enough.

They called him by his legal name occasionally, or as 'Alex' rather than 'Alexandra' and that was upheld as a complaint. Despite referring to him as she consistently.

Half the upheld complaints are about eavesdropped snippets of conversations that didn't reference him at all, or transgender issues. But they must have been about him. Because he decided they were.

He worked there for a matter of only weeks, submitting complaint after complaint to management that were all investigated and found to be groundless.

This judgement is a political warning. No matter how absurd the demands, companies must accommodate transgender employees demands or suffer consequences.

The more I consider the toilet incident the more unfair it appears.

Female employee forced to share intimate space with male employee, and when another male enters, SHE bears the brunt of a formal complaint? Because male employee is aggrieved to have another male in his presence?

I'm not sure how the women felt in this situation, but I won't judge them for their frustration, and I don't hold them accountable for protecting the feelings of the man who gives no care to theirs.

Only one person is called a "Ms". I hope you aren't assuming everyone else's gender.

FOUR people in the tribunal findings were called 'Ms' so no, I am not assuming anything at all.

Lougel

What do you mean by no right to share the data? The employee provided proof of ID at interview with the male name on it. This is the employees name. The company has to use your legal name. HMRC use your legal name, companies have to transmit data to HMRC using your legal name. This happens at every single employer in the computerised world. Everywhere. There is no fluffy IT world where you can simultaneously be male and female. COMPUTERS ARE BINARY.