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.

hi user

I’m interested in that clash yes

Arguing about whether the judgment is correct is moot - it hasn’t been appealed so that is the correct judgment. I think you can determine if you look at the thread that the HR professionals and legal experts here are not interested in condoning harassment. They are interested in avoiding future occurrences.

However if people are concerned with the moral ramifications then they need to be able to discuss that. That’s not condoning harassment that’s coming to terms with what to many is a frightening prospect

I am angry because with comments like "I mean we want to protect transgender people form harm, but compared to other groups there are clearly a disproportionate number of transgender people who are sexual harassers or whatever themselves". In the context of an ET claim for harassment, so what? Are you suggesting the transgender shop assistant was one? Why bring it up except to try to discredit this person for no good reason? Should transgender people have fewer rights than now because I don't believe that? Not a way to build allies

We have had legal protection against unwanted harassment against transgender people in employment for many, many years (1999 I think) and employers have had long enough to work out rules of behaviour to and between staff/processes for line managers etc. Primark is a massive employer so there really was no excuse for their conduct.

There are well over 100 posts. Please have some balance.

No matter how much ive got a problem with self - ID and the proposed changes to the GRA, it sounds like that person was being severely harrassed, intimidated and bullied and that shouldnt be tolerated. Im glad they won.

I’m interested to see what will happen long term if (when?) the GRA comes in- it just seems like a total minefield where HR won’t be able to do right for doing wrong.

Obviously in this case there were accusations of straight up bullying, but another pp has pointed out well how it could impact on day-to-day elements of the workplace.

Another worry would be the impact on trans people as a whole and how it will impact those who just want a job and to get on with the people they work with- I’m gender critical, but someone’s trans status wouldn’t put me off recruiting them if they were the right person for the job. But I admit, if I owned a small business I would definitely pause to consider if I would be able to deal with a possible HR nightmare or bad publicity because of these grey areas with regards names on passports or bathroom preferences etc.

In addition, I find the whole “outing” thing as absurd. Obviously, I’d expect staff to be polite and respectful, but I couldn’t haul someone over the coals for accidentally using the wrong pronouns for someone who blatantly looks like a natal man.

User you have caught my interest.

So employer decides on their PCP re toilets.

No matter what they decide there’s an ET claim.

They need to prove PCP is a proportionate means of achieving a legitimate aim.

Surely statistical evidence (so long as credible and rigorous) of sexual offending in trans woman can be used to show that the fears of harm have been reviewed and as the risk is statistically low/ high then the PCP is justified.

It’s potentially evidence that an employer would rely upon to decide which is the best course of action. There has to be a balancing act for the employer to undertake - it can’t just flip a coin

Sex segregation is not simply about harm.

I want sex segregation for the same reasons we have always had it. Those reasons have not gone away. My employer is not going to be able to convince me otherwise and I don't believe it is their role to do that.

Hi handbaggage

I don’t mean to be callous. I’m trying to work out what evidence an employer would be able to rely on to defend its decision.

The health and safety aspect lends itself to evidence which helps the employer to be objective.

With violating dignity which I think is were you are coming from I can see that being more tricky as both you and the trans woman could have the same concern

Elletorro
I will try to get back to you to answer your question but it will have to be later (as I must work)

Mouthandtrousersall - So once self ID becomes the general way of things who needs any paperwork to say anything, its just what come out of your mouth on that day!

And I love your airy assumption that self ID "erases" all proof!!!! Have you ever used a computer? In a workplace? Yeah it's all gonna just be magically ok......

I've noticed in recent discussions the term 'self-ID' is being used to mean two very different things:

1. The way it is currently being used - 'everyone must simply believe me when I declare my gender and it's transphobic to do anything else but affirm it unquestioningly' - I think this is how you're using it here?

2. The way it's used with reference to the proposed changes to the gender recognition act.

This absolutely does erase all proof. Download and sign a form, get a brand new birth certificate. From that point forward it's a criminal offence for anyone to disclose your old details or your trans status without your permission, if they came by that information in a professional context.

So random bloke signs his declaration, gets sent a GRC then a new birth certificate. Changes all ID to female. Applies for a job with shiny new female ID. Still presents and behaves as a random bloke but it's illegal to treat him as anything other than female. It's illegal to even suggest he might be trans unless he volunteers that information.

I can't even see a way to use the tiny few sex-based exceptions in this situation.

Thanks for this thread OP, I'm really interested in the implications of this stuff. I've got some questions for HR and employment law type people if they have time -

How does the self-ID stuff work with the new immigration act? What ID do you need to see? You can change all your ID except birth certificate without a GRC. If you don't have a GRC you need a letter from a doctor and a deed poll if you want to change your passport. So I suppose the new GRA will make life lots easier for men who can't even get a letter from any doctor anywhere. Which is nice.

What happens with DBS checks? I've heard rumours that senior police officers do have access to pre-transition data but if anything showed up and they had to put it on a report, how would that work?

I've skipped some of this thread as I've tried to read the more HR focused ones.

It sounds like Primark could have avoided a lot of this by following a decent grievance procedure. There was bullying, and action should have been taken.

I work in a fairly lefty organisation so we have a fair few transgender service users and have had some applicants, and employees who identify as transgender or genderfluid, etc. We already have a gender neutral toilet on each floor. Staff are generally known by their preferred name anyway, but obviously both are kept on record. Only me and the directors have access to these records though, it's not that hard to make sure the name people are familiar with are on name badges timesheets, etc. (Although we may have less employees than Primark or other organisations)
Our payroll system can only process male or female. AFAIK, this is what HMRC accepts currently so I presume we would follow this for gender pay gap reporting. It's certainly what I currently use for the quarterly reporting thing (it's been a day, I can't remember what it's called but it has the angry red writing.)
Our annual staff survey gives other wording though, so that's where we get our stats for current staff which we compare to our recruitment stats.

I think due to what kind of organisation we are we're probably more accommodating than others, but we could definitely do with some actual training. But you've given me some things to think over.

(I've tried my best to keep my personal feelings out of this and see it from a HR pov. It's definitely something that could bite us in the bum if we don't keep ahead of it)

@PencilsInSpace

Thanks for your post. That’s useful to read how self-ID is being perceived (and it’s scary).

Even being in HR, I actually don’t know the answers to your questions (and this is what concerns me!) Yet another change in law and we have to do our own research to learn the answer.

How does the self-ID stuff work with the new immigration act? What ID do you need to see?

I’ve always followed the government guidelines, so normally EU Passport, or birth certificate and proof of NI number. Failing any of these, relevant visa. When people change their name after getting married and still haven’t changed their passports, I normally accept a copy of the marriage certificate alongside the passport. However, I’m probably not as “tight” on this as I should be.

With self-ID, in theory, their GRC I would think needs to be presented with their birth certificate / Passport in either old or new name / gender.

What happens with DBS checks?

I believe that a diligent organisation should check both the new transgender person & their old name/gender if it is declared. I would however, be extremely concerned if this is frowned upon / illegal or other, because basically that implies that a person can erase their entire past pre-GRC being issued. I would like to believe that this isn’t the case, and organisations will be allowed to carry out the appropriate checks. I know when I had my DBS check, I had to declare my birth name, and all addresses in the last 5 years I think. If contractually, an offer of employment is made subject to relevant DBS check, then the failure to pass the check or refuse the check, would result in withdrawing the offer of employment. It would need to be tested at an ET to determine if that request to have a DBS could be indirect discrimination. I think very unlikely, but you can never say never.

We already have a gender neutral toilet on each floor. What happens if a male who self ids as a woman wants to use the female toilets. Does their wants over rule the female workers rights to a female only toilet? Genuinely interested.

With self-ID, in theory, their GRC I would think needs to be presented with their birth certificate / Passport in either old or new name / gender.

AFAIK you can't ask to see a GRC unless the applicant volunteers it. If they have a birth certificate that says female you have to treat them the same as any other applicant with a female birth cert. What else could you do (legally)? Getting a new birth certificate is pretty much automatic when you get a GRC. The panel inform the registry and you get sent a letter saying 'please confirm these details are correct and we will send you a new birth certificate.'

I believe that a diligent organisation should check both the new transgender person & their old name/gender if it is declared

What if they don't declare it though? How do you legally ask obvious bloke with all female ID whether they might be trans? I think (but not sure) senior police have this info so a DBS under current name/legal sex should flag anything under previous name/legal sex but I don't know how that could legally be reported back to the employer as it would disclose the applicant's trans status.

@PencilsInSpace
Your questions are the questions floating around my head and have been for many months tbh. I see the trans threads and follow them (but havent commented) and relate back to how this may affect me / my profession and I just feel utterly helpless that a culture shift is happening and I can do nothing about it.

A transgender person can self ID, work in a care home / school / hospital / leisure centre, with children, women and/or vulnerable adults, and those organisations won’t legally be able to check the history pre-GRC or legally be able to receive the information from a source (the police) without revealing the transgender status and then this opening up risk of [employment] litigation.

Hi professor

I think that the employer is probably covered by section 22 of the gender recognition act subsection 4

www.legislation.gov.uk/ukpga/2004/7/section/22

If the data is for any of the listed reasons.

I am sceptical that DBS IT systems will cope though but that’s not the employers concern

I am sceptical that DBS IT systems will cope though but that’s not the employers concern

It's the concern of any clients/customers/patients etc. that random legally female bloke has dealings with. It doesn't matter to them if HR have decided it's not their concern. If vulnerable clients are abused by someone whose previous convictions should have shown up on a DBS, but didn't because trans, then that is a massive safeguarding fail.

What happens if a male who self ids as a woman wants to use the female toilets. Does their wants over rule the female workers rights to a female only toilet? Genuinely interested

We haven't had this with a staff member. I believe it happened with a service user at an event. Female customers complained to security and the person was told to use the gender neutral toilets. It was a bit of a sticking point, but as it wasn't staff I wasn't involved and I think they were basically told that they were provided for so suck it up. (In much more PC terms I think.)

I have visited similar organisations who only have gender neutral toilets.

That's the kind of "reasonable adjustment" I think should generally be made.

Hi pencils

What can HR do beyond a DBS check though?

It is a massive concern for society but if the DBS isn’t up to scratch then that’s the government at fault.

I have visited similar organisations who only have gender neutral toilets.

Yes this is how it shakes down on the ground. Sex-segregated anything turns out to be just too fucking hard so we end up with gender neutral everything, no women's groups and, bet you £5, no AWS in the very near future.

What can HR do beyond a DBS check though?

Nothing. I'm not suggesting that HR should go beyond what they would do for any other employee. Clearly that would be discriminatory.

I'm suggesting that if current DBS rules are not fit for purpose and jeopardise safeguarding, and if HR as a profession are aware of this, they should be kicking up a stink. Because this is not a paper exercise. Safeguarding breaches lead to actual people, actually being abused.

These definitely have women's groups. But they are very lefty organisations, so I wouldn't expect them to be a clear example of the future.

Are they actually women's groups or are they for anybody who identifies as a woman, or just as a non-man?

Like whistle blowing?

What’s the government department responsible for DBS? They need to be held to account now because I bet that’s an IT systems change that will take ages to sort

Would imagine it’s a gift to anyone trying to conceal their identity actually