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.

Terfousbreakdown

How do you handle female employees who want separate facilities for purposes of dignity?

How about being complicit in ambushing female employees if they are not made aware of a male bodied employee sharing their facilities?

I do think the “toilet issue” will be tried at tribunal at some point. I’m not HR but I’m an in-house lawyer so do work with the HR team on these issues.

I’m actually not sure how I’d advise in a situation where we had a TIM employee and a woman complained about them using the women’s loos. I’d certainly seek expert advice.

@SusanBunch

There is a point of view that says we can and should be less accommodating in this campaign, or whatever it is.

I feel aggrieved that no one has asked women if men can use the metaphorical Women's Room.

No one has done that, its been imposed on us.

I will hold my peace and say nothing, but it will result in misbehaviour. The workplace doesn't differ from the playground in that respect, in fact it's nastier by far. No one in this thread said the bullying was ok, BB saw the other side's perspective, stood in their shoes. I can do that too. This has not turned out to be a neutral change, men moving into women's spaces is fundamentally changing the nature of that space. It makes me think this is how men felt were we demanded to be in their spaces, this is why they reacted they way they did and hung on to the external world of work and public life etc.

It's the private space we need to keep and the equal space we have been granted, grudgingly. This is begin given away on our behalf and it's generating a visceral response and that has to indicate something, it really does.

So apologies for giving you a poke, your voice is important, I can see you are very committed and I was glad to see you reply to me.

Hi wiggy

The female employee doesn’t need to have a constructive dismissal claim though does she? She can bring a claim for sex discrimination or indirect sex discrimination can’t she?

In fact the whole female workforce could. It could be like the equal pay multiples if the unions get riled up

The challenges I see are similar to yours Terf - quite trivia like you say (shared rooms, toilets etc). But for me, I feel like the education/training will be hard. Especially when my personal views perhaps conflicts with what the general views of transgender people (eg, that transwomen believe they are women, using phrases such as pregnant “people” not pregnant women, chestfeeding etc ). This perhaps isn’t a “HR perspective” more of a personal battle that I’m going to have to get over.

Other issues:

• I think reporting of sex and gender in the workplace. So for example, under the gender pay gap reporting, will I report on a transgender woman as a female or a male, if they’ve transitioned during our employment? In theory, a male joins and potentially benefits from being this sex (known to ask for better packages in comparison to females), transitions to female, and skews my figures. I haven’t got this issue to deal with (so no idea why I’m worrying) but I foresee this happening in the future.

Also on an annual basis we report on statistics such as training hours, training expenditure, promotions and recruits etc on a male / female ratio. It may well be as simple as adding a box to say TGW and TGM but suspect a TGW or a TGM wants to be female or male in the reporting figures, or that it’s just “easier” to assign them to a sex and likely HR will be encouraged to assign them to their preferred gender not their biological sex. That’s not right IMO.

• Transitioning and/or gender disphoria is a health issue and requires support, therefore money and resource (paid time off, counselling etc). This falls on HR (and line management of course). Refusing the financial support/ time off or offering minimal support could be construed as discrimination.

HR depts will be coerced to go “above and beyond” the law, as we do with most health related things such as health surveillance to protect our arses and mental health which I do support (but even the less taboo mental health is becoming has put a strain on organisations to deal with this when many mental health issues such as anxiety/depression are personal mental health issues, not work related, but organisations and management are expected to fully support and take on the responsibility to do so, as well as put a lot of onus on management to spot mental health illnesses when they’re not professionals; this is a whole other thread and I digress) but I can see transitioning becoming something that organisations are expected to (financially, emotionally) support regardless of it being law or not, and if they do with other areas of health (mental or other) or not, will be deemed as “not fair” to the TGW or TGM.

Elle yes, I should have made myself clearer, the ET doesn't get to decide independently what is a proportionate means of achieving legitimate aim, a claim has to be brought to them.

I think your hypothetical employee would struggle to make out a claim though.

The entire Codes of Practice for employment can be found here: www.equalityhumanrights.com/sites/default/files/employercode.pdf

I can see transitioning becoming something that organisations are expected to (financially, emotionally) support regardless of it being law or not

Hadn't considered that, but I can see your point and, TBH, it sounds like a bloody nightmare. I'm all for being supportive of employees, but as you say, even the current culture of above and beyond support is putting a strain on organisations.

At the very least, the inevitable sensitivity training for managers should be fun. I'm joyfully anticipating the role-playing exercise where I get to explain to a colleague posing as a client that Harry is now Sarah.

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

I said that ^. But I meant agree, not disagree.

I don't think anyone, ever, would condone bullying.

It's whether or not this was as one-sided as it appears.

My experience suggests to me that it probably isn't.

Equality law is neutral in terms of the importance it places on each of the protected characteristics.

Suddenly, our culture is not treating in that way.

And where you have a he said/she said situation, that's going to count.

Hi wiggy

Sorry I’m confused, probably because I’m not sure which post your reply to. I posted a string of scenarios.

for the female employee:

She could say that not having sex segregation in the loo is creating a hostile environment and violating her dignity. Sexual harassment. Is that sufficient to show unfavourable treatment for direct discrimination?

Does she need to point at a male comparator who is not experiencing this in his loos? Or say if there were a trans person in the mans loo then it would be a biological woman and so not perceived as a threat on a very basic instinctive level?

And then indirect discrimination would be that the PCP of allowing trans people to choose loos according to gender is having a disproportionate effect on women who as a biological class perceive biological men to be a threat.

The concern for the employer trying to use the Equality act exemption to use sex segregation and avoid that situation is that whether they can say avoiding sexual harassment/ discrimination claims is a proportionate means in the event that the transgender person brings a claim?

Thanks for your patience!

At the very least, the inevitable sensitivity training for managers should be fun. I'm joyfully anticipating the role-playing exercise where I get to explain to a colleague posing as a client that Harry is now Sarah

Whilst funny, this is another good point.

Our clients, rather than our staff, are another bunch of people to consider.

Discrimination (and I hear more about disability discrimination in particular) can be by association (ie partner may be transitioning and partner works for us and could be harassed / bullied because of this therefore a risk), but b&h can also be by a 3rd party and it would be the organisation responsible for managing this.

So hypothetically, imagine a key account manager Dave, who works with 50 clients and transitions to Debbie. One client, Table Ltd category manager feels uncomfortable with newly transitioned Debbie and requests a new account manager. There are no other account management roles for Debbie, nor an account manage to cover this client. You remove Debbie and have a high risk of unfair dismissal due to transgender characteristic; OR, you allow Debbie to continue in role and risk relationship with client being either bullying (could be as bad as Primark case) or complete relationship breakdown or, at worse, loss of client.

It’s a bit far fetched but when you work with small clients and lots of them, you’re educating small >5-person band businesses who do not give a crap if they offend the person that they’ve been dealing with for 5 years as a man, who now rocks up in a dress. The reality is, it will be down to our business to manage that attitude and behaviour of our clients, yet another thing on HR’s list of to dos.

In terms of what people are meaning by self ID:

As I understand it, there is a difference of self identifying as trans and self identifying as a woman.

You can self id as trans by just saying you are trans and you're covered instantly under the EA Using the protected characteristic of gender reassignment.

Self identifying in terms of the proposed law changes will be self identifying as a woman, and therefore covered under the protected characteristic of sex.

Minefield.

I'll make this my last post since I think some posters are deliberately misunderstanding what I have said.

I condemn bullying.
The REPORT LINKED ABOVE explicitly lays out two differing versions of events.
The judgement was frequently to side with the complainant.

posters repeating the sentiment of, it was definitely bullying, #nodebate, effectively allows that if a woman says "I didn't that", and a man says "yes you did", and no evidence exists to corroborate either story, that it is just and fair to side with the man.

My position is that this is NOT just.

One of the women accused of calling him Alexander (his legal name) had called him "Alex" instead, much as she did with other staff in friendly abbreviation. He was confrontational about it and she made a written note at the time of the name she had used, and his confrontation. Her note, provided as evidence, was dismissed, and the tribunal decided - on no evidence other than his word, that she had said what was claimed by him.

This is a kangaroo court.

If there was ANY evidence that he actually was bullied I would be condemning it BECAUSE I condemn bullying. But two people disagreeing about what happened is not evidence.

I am challenging the integrity of that tribunal process based upon the written record of each of the decisions it reached and the justification it provided.

You can all read it too.

So do stop with the "gives a bad name" nonsense. There's no need to attack those who read the report and challenge the conclusions within. Critical thinking need not be suspended entirely to show bullying is wrong. It is. But there should be some standard of proof if an accusation is made, and this judgement, based upon the notes above, has not required an acceptable standard of proof, in my opinion.

It is disappointing that a judgement like this is deemed to be beyond criticism by posters. Justice still needs to exist, and should be robust enough to face challenge.

It’s a bit far fetched

It really isn't. It's also not necessarily an issue that's going to be limited to small clients. My current one is huge. If they behave in a discriminatory manner towards my staff (it happens - mostly male client employees being creepy towards my female employees), I can and do bring it up with my counterparts, but really I have no leverage and can't do much to force a client to address the issue if they don't want to. Whatever contractual rights I do have are de-clawed by the need to maintain good client relationships. My best shot is to complain to a senior client manager whom I know to dislike the harasser, actually, and there isn't always one, so I tend to re-assign employees for their own protection in such cases, TBH.

Her note, provided as evidence, was dismissed, and the tribunal decided - on no evidence other than his word, that she had said what was claimed by him.

This is a kangaroo court.

@BarrackerBarmer I get what you are saying. I read the first 17 pages this morning but I too also saw the handwritten note dismissed by the judge as credible (yet we are constantly told by solicitors and the likes to keep all handwritten notes / file notes). But, unfortunately (or fortunately) employment law is not the same as criminal law. It requires only a reasonable belief of one person over another, and not ‘beyond reasonable doubt’ therefore 100% certainty (as in criminal law).

The judge on this occasion did not believe the witnesses, who included HR professionals. Reading between the lines, I don’t think the HR professionals were involved at the beginning of the situation escalating from employee to management, as a grievance investigation has taken place but not confirmed in writing and not right of appeal given (which is pretty basic stuff in reality). This isn’t exactly going to score brownie points with the judge when they then ask questions relating to a scribbled file note with the name “Alex” on. It all adds up and normally in a court, the organisation needs to be able to say “you’re honour, we did a /b/c and the outcome was d/e/f and witness 1/ 2 / 3 can verify this” - Primark have fallen down here, procedurally and keeping file notes of the employees complaints.

@elletoro

Violation of dignity/hostile and degrading environment etc comes under harassment, and for that there has to be unwanted conduct. There is no need for a comparison to a man for such a claim but I doubt it will work as i don’t think ‘unwanted conduct’ would be made out.

I think that the indirect claim could potentially be viable but whether it would succeed or not is anyone’s guess. Firstly whether or not letting transwomen use the female toilets does put women at a particular disadvantage would be up for debate - not by me, but you know it’s a contentious issue. Also, i direct discrimination is a claim that can be justified if an employer can show that it is a proportionate means of achieving a legitimate aim. So the employer could argue that recognising transwomen as female is a legitimate aim, and letting them use the ladies loos is a proportionate means of achieving that aim. That again is a value judgment, and a judge isn’t certain to agree.

If it were flipped and a transgender person were complaining that the toilets were sex segregated, yes the employer could argue that there is a legitimate aim in play - probably better put as protecting women’s dignity or some than as avoiding claims. Same issue though, whether it’s proportionate or not depends on your views of trans politics.

@barrackerbama

Where has anyone said #nodebate?

But two people disagreeing about what happened is not evidence

Actually it is. It’s separate and conflicting evidence from two sources, and the tribunal having actually listened to this evidence is perfectly entitled to prefer the evidence of one person over another. In fact this is how cases are decided all the time.

By your logic we could pretty much never convict a man of rape.

Thanks McTufty

So the employer’s in a catch 23 if a female employee complains. They cannot please both her and a trans woman.

Do you think there’ll be much litigation?

Ha! Catch 22 I mean

Haven't RTFT, but mouthandtrousers recommended I posted a document I've been working on on a different thread here.

It is a Campaign for the Right to Choose Sex Segregation a work in progress and open to your feedback.

To put it in context - it is deliberately narrow in its focus and avoiding being reactive or using language that is vague, conflates sex and gender or referring to transpeople. Any thoughts welcome.

People might be interested in the Government Equalities Office’s guidance on these matters (including use of bathrooms/changing rooms etc):
www.gov.uk/government/uploads/system/uploads/attachment_data/file/484855/The_recruitment_and_retention_of_transgender_staff-_guidance_for_employers.pdf

@GuardianLions

Really good document. It is clear and concise. My tiny bit of feedback is the use of the abbreviation GRA in the last sentence - as this is the first mention of it, it’s xonfusing as an abbreviation to someone who knows nothing about GRA changes.

What’s the plan with this document?

@Speedy85, interesting but worrying.

On a cursory glance, I read ...

1. Trans employees should be the ones to determine who knows about their status and employers should refrain from outing them
2. Trans employees should have access to facilities for the gender they identify with

That's all fair enough - so long as the trans person in question passes.

But what on earth am I to do if one of my female employees reports a distinctively male looking colleague being in the ladies? As per 2) I should make sure they can be in there; as per 1) I'm not supposed to out anyone. Is the government saying that I am to tell her that we're relaxed like that and it's alright? She'd have every reason to then report me for failing my duty towards her!

People seem a tad naive about the issue.

But what on earth am I to do if one of my female employees reports a distinctively male looking colleague being in the ladies? As per 2) I should make sure they can be in there; as per 1) I'm not supposed to out anyone. Is the government saying that I am to tell her that we're relaxed like that and it's alright?

I suppose you’d say you’d investigated and that “Susan” or whoever was in the correct facilities. Not an easy conversation.

On the point earlier about clients not wanting a transgendered account manager, I’m less worried. I’ve dealt before with clients not wanting female account managers and once with not wanting a “paki” (the client’s word). I’d deal with them not wanting a transgendered account manager in the same way.