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.

And this is the absolute perfect example of SELF ID as others have stated.

This MAN did not have a GRC. he hadn't even changed his name or his passport. He just demanded a pretence from his employer and colleagues and complained when this proved an impossible ask.

This is exactly self ID running ahead of the law.

His employers would have been within their legal rights to treat him as the legal male he is. But they didnt, presumably trying to be tolerant and accepting. Giving that proverbial inch has led to this car crash of an outcome.

@SusanBunch I agree with you that this is a vile and awful case of harassment and unfortunately, not unusual in retail either from my experience.

However, I have not started this thread for a debate on a transgender woman being harassed or not (the first link, PDF, clearly goes into a lot of detail of the evidence and cross examination of the witnesses too, concluding that it was definitely harassment and I agreed with this in my first post) but I was concerned, as Mouthandtrousersall has said, that self ID in the workplace is/will be a nightmare for HR.

For me personally, I’m struggling with the concept that I have to potentially make allowances for TGW at the expense of my female workers, basically weighing up the commercial cost of fighting a transgender discrimination claim, vs, a sex discrimination claim. The cost of this case too also sparked something in my mind as I have seen harassment cases and settlements and this one just seems very high.

I’m not transphobic (although your post didn’t seem aimed at me, more at people who disagree with the judgement which I didn’t) but this case for me, opens a floodgate for potential “piss take” TG claims eg. Saying he instead of she by accident, systems saying sex not gender, and this not being changeable.

I laugh a little at the systems, as my birth name is still on various systems in my company and yet it changed 3 years ago when I got married. But every now and then it pops up on some list, as I’m due training or whatever. Bloodyhell, even HMRC will write to me as birth or married name depending on what mood they’re in, my point is that there will always be non-human and system error that could then be construed as being transphobic, and yet it lands on HR to sort this mess out.

It is also obviously a case of their word against theirs.

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.

Oh, come ON. Frustration gives nobody the right to bully another person. Read the findings. They used the name Alexander, not Alex. Why are you re-writing what the tribunal found? They have no right to refer to the claimant by the wrong name.

Praying for the claimant because they have evil inside them? Seriously? I am sure there are many fundamentalist Christians who are 'frustrated' that gay people can marry and adopt children. Does that give them the right to treat them badly at work? No.

This was very clearly bullying in the workplace and no matter how short a time someone has worked somewhere, nobody deserves to be treated like that at work. Being gender critical does not imply a right to make other people feel bad. If someone tells you they are called Alexandra, you bloody well use that name when you address them and do not assume that you have a right to use a male equivalent. You also do not tell people that they have evil inside them.

It's people like you that lead to the gender critical movement being dismissed as bigots and transphobes. It seriously upsets me because it WILL undermine all the hard work in trying to get people to see the dangers with self-ID.

It's a clearcut case of bullying in my eyes - and, no, I'm not HR, but I'm a line manager and wouldn't condone this kind of behaviour in any of my teams - not because an employee is trans, not because of their weight, the fact that they talk in a funny way or because they're ginger or any other of the myriad reasons why people are treated appallingly.

Having said that, trans issues and the workplace could certainly turn into a bit of a minefield in the future.

I’m sorry if my thread title has been perceived as goading, that certainly wasn’t my intention.

MNHQ have asked if they can change this and I have given them permission to.

@susanbunch

Why are you explaining to BB that people don't have a right to bully?

I can't imagine for one moment that a woman in her sixties who was working to fill up her pension gap would take 'old lady piss smell' or 'she's off to the toilet, again!' to a tribunal for bullying in the work place.

Having said that, trans issues and the workplace could certainly turn into a bit of a minefield in the future

This was why I started the thread @TERFousBreakdown I love HR and love my job but I am really concerned how this will pan out in the future.

@ProfessorSprout

It really made me think through process impacts so thanks for bringing it up. Good idea to change the name though!

I think from an HR point of view we have to be very explicit that we can't use a preferred name in place of a legal name at all times.

Elenden. I have to keep apologising for the smell, sorry.

Why are you explaining to BB that people don't have a right to bully?

Because BB clearly disagrees with the findings of the tribunal here, despite not having heard any of the evidence from the witnesses. No trans person should be bullied at work- that is so far from what I understand being gender critical to involve. If you read the judgment, it is so clear that the claimant was bullied by these colleagues. Nobody should be subjected to that. If I am wrong and being gender critical means believing that you have a right to use a name that someone doesn't want used and to repeatedly point out a person's biological sex despite being asked not to, then I will have to bow out of this because that is not my definition of being gender critical at all.

@Mouthandtrousersall

The irony is 2 out of my 3 directors use their preferred names which are their middle names, and then they shorten them! (i.e instead of Matthew Andrew Jones, they use Andrew / Andy) If I take the stance of no preferred names, it would have to be a blanket ‘no’ to preferred names.

Like i say, the start of ‘mess’ which just isn’t my priority when I’m dealing with huge gender pay gap issues, not enough female management and lack of skilled females in our production areas, that I would much rather focus on.

I have a tale about 'old lady piss smell' but it would not go down well on this thread, especially with Susan.

It was successfully resolved. But this was back in the 90s.

I can't imagine for one moment that a woman in her sixties who was working to fill up her pension gap would take 'old lady piss smell' or 'she's off to the toilet, again!' to a tribunal for bullying in the work place.

Why not? That is disgusting bullying and I have seen workplace grievances based on much less than that. What do you mean by that comment? That comments like that should just be taken in good humour?

At tax time I take a lot of requests from people who suddenly remember they need to use their legal name and want me to change their records. And then once the forms are sent I have to remember to go in and change it back or there is ALL HELL to pay.

I have a tale about 'old lady piss smell' but it would not go down well on this thread, especially with Susan.

Well, why don't you tell it to us and then I can decide whether it goes down well with me or not.

I've read the judgement and it seems perfectly reasonable. Horrible bullying and I hope Primark have made changes since.

" If I am wrong and being gender critical means believing that you have a right to use a name that someone doesn't want used and to repeatedly point out a person's biological sex despite being asked not to, then I will have to bow out of this because that is not my definition of being gender critical at all."

Quite so.

@susanbunch
I wondered if you would get the mansplaining irony there.

@professorsprout
The project I am working on now has 58 countries, the naming conventions are never ending - the 'known as' name can be names 4 and 3 out of 5. Unless companies copy a passport name exactly NOTHING WORKS!

I wondered if you would get the mansplaining irony there.

Maybe I am being slow, but what do you mean by that? I am not a man. I said what I said because BB's response to the judgment was that it was unfair and she even justified the actions on the basis of the colleagues feeling uncomfortable. So I said that being gender critical does not mean a right to treat people badly in the workplace in the way that these people treated the claimant. I don't see that as mansplaining at all, especially as I am a woman.

Mansplaining is gender neutral. Bleugh.

To badly summarise it's someone telling people stuff they already know.

Like explaining that bullying isn't a right. ;)

As with many of these threads we all seem to have ended up in agreement..............:)

Out of interest, @ProfessorSprout, what challenges do you see from a HR perspective?

I foresee a whole lot of potential pitfalls on my end, starting with the comparatively trivial (e.g. some 'perk of the job' events where employees routinely room share with colleagues of the same sex - all okay, so long as a transwoman accepts a single, but what if they argue they're being singled out?) to completely fundamental issues, such as my current employer actually having sex-based hiring and promotion targets which could soon become utterly meaningless.

Not to mention a whole array of operational issues. It's bound to get interesting!

Okay, I didn't realise that mansplaining was neutral.

But I don't think that was what I was doing really.... Just pointing out that a person's disapproval of something doesn't give them (in my opinion) the right to treat another person badly. Which is what BB was essentially saying by arguing that the tribunal was unreasonable.

Maybe I should hide this thread. It seems my views aren't particularly welcome on here.

I can't imagine for one moment that a woman in her sixties who was working to fill up her pension gap would take 'old lady piss smell' or 'she's off to the toilet, again!' to a tribunal for bullying in the work place.

Well she certainly should - clear bullying and absolutely actionable.

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 relation to the first, it wouldn't be the ET's domain unless there were a constructive dismissal claim. The employer must not treat anybody unfavourably on the basis of gender reassignment, but also must not treat anybody unfavourably on the basis of sex.

If the employee were bullied out of work for raising a complaint then she would have a constructive dismissal claim on the basis of sex.