Employment Tribunal finds NB does not meet PC of GR

[DrProfessorYaffle]

https://www.gov.uk/employment-tribunal-decisions/h-lockwood-v-cheshire-and-wirral-nhs-foundation-trust-and-others-2401211-slash-2024-and-2407178-slash-2024

"Although the claimant has taken steps to change attributes of their sex
from female, by changing their name to a name which can be identified as of
either sex, and has changed their preferred pronouns, those are not in our
view attributes which are for the purpose of moving from one sex to the other,
they are steps in the process of moving away from the female sex to a
different gender identity, ie that of non binary. The claimant is not proposing,
nor do they intend to take any steps to reassign their sex from that of female
to male.
105. We therefore find that the claimant does not have the protected
characteristic of gender reassignment."

I would say surely no one would be that stupid...

But it seems this person is other devoid of insight and the ability to take external advice OR they are being advised by someone who very much has an agenda which doesnt centre their wellbeing

I have started reading the judgement and I already feel so sorry for the IT staff. Anyone with any workplace experience knows that the IT Service Desk deal with hundreds of tickets per day and can't be expected to remember each case where a user's name or honorific hasn't been updated in Active Directory yet.

The claimant did not alert Ms Dunn to their concern and the conversation was amicable. Ms Dunn left to go to her own room. Shortly afterwards the claimant emailed Ms Dunn to express their concerns and told Ms Dunn that she had misgendered them. The claimant commented that they understood it was entirely without malice and was likely to be a mistake. They explained that being misgendered was “like a gong going off in their head” and that was why they couldn’t mention it in the conversation. The claimant then proceeded to put paper across all but a few inches of the glass panel between the claimant’s and Ms Dunn’s room. Although the claimant says they did this because they felt unsafe, we are unclear what the claimant means by this.

Robin Moira White successfully arguing that non-binary is a load of old twaddle has made my Friday. We'll make a TERF of you yet Robin!

It's hard to discern the balance between possible capacity issues that mean really without significant support and care well above what would ordinarily be offered to an employee, they may not be able to function in the workplace - reasonability of adjustments coming into play- and unrealistic expectations and behaviours that have never been challenged and reframed.

"Unsafe" seems to be the mot du jour for the precious TRA's these days and it always gives me a dry chuckle.

I haven't RTFT but will do so as this seems like a useful judgement. Although I assume it won't be a precedent unless it goes to appeal and there is no change to the decision.

It's frustrating how there is lots of mention of "correct" pronouns and "mistakes" with pronouns. Who is the arbiter of what is correct? It's going to entirely depend on whether the person who used the pronouns to describe Haech believes that everyone has a gender identity or doesn't.

This bit of the claim made me laugh out loud:

On 31 January 2024, Yvette Dunn failed to acknowledge the Claimant in a corridor interaction, responding with a brief “hi” and turning away. [Incident I]

As sad as it is to feel like you've been slighted in such a low level way, what kind of a person raises it an employment tribunal?! And what was Haech expecting Yvette to do?! A curtsey? A hug? Hold a deep and meaningful conversation? What if Yvette was busy and was just getting on with her day?

Thank goodness common sense seems to be creeping in to court rooms. Finally.

And this person is supposed to be a therapist, offering quality support to vulnerable people in distress.

There surely must be some question around fitness to practice and duty of care to the clients too

Bullshit=Bullshit.

Who knew?

With all of these cases, I wonder what the internal narrative looks/feels like to the Right Side of History person - so to Beth/Rose/Haech etc? Is it possible to construct a narrative which never makes you think "But hang on... we were really busy/that's a perfectly normal response" etc? I genuinely don't think I could do it. Clearly none of these people has ever tried the "third chair" technique, where you make a genuine effort to tell the story from the point of view of the other person/side.

I long since came to the conclusion that however stupid it is, someone can be it.

It does show part of the UK's productivity problem - the amount of management time, system changes, policies, procedures, training and apologies spent on <0.1% of staff.

Reasonable adjustments are only needed if the employee is disabled. There's no indication that this employee is. The employer should expect other staff to behave in a reasonable manner towards a colleague. If they're doing that, and the colleague can't cope with the trauma of reasonable behaviour, then it's a conduct or capability issue which can lead to a fair dismissal with no right to bring a discrimination claim.

And the manager's apologies weren't good enough because they didn't demonstrate enough insight into what the ICT team allegedly did wrong? This level of coercive control, these demands for Maoist struggle sessions, are shocking when you consider that this person is meant to be a therapist.

Accepting the apologies for misgendering from the ET panel but not the IT service tells me that this person is perfectly able to be reasonable when it suits her in order to appease people with power over her. She punches down at the IT service because she thinks she can, because she's a bully.

NBs are still protected from harassment at work as are all of us

No, they are protected from bullying like the rest of us.

Harassment has a very specific meaning in law.

I think NB males are just trying to be edgy and think they’re doing something that older generations could never understand. But the young females who’ve been bombarded with the evil misogynist culture is something our gen can’t imagine. We should have great sympathy for these young girls but unfortunately that muddies the GC waters.

He didn't. From the judgment:

90. Ms White on behalf of the respondents confirmed that all respondents took a neutral stance as to whether section 7 Equality Act 2010 applies to the claimant.

https://www.nejm.org/doi/full/10.1056/NEJMp1811491

This woman's baby died in part because her medical records said "male".

Yes, sorry: bullying includes harassment but not vice versa. Although the distinction seems to be mostly about motivation.

The judgment talks about harassment - presumably a belt and braces job aimed at establishing that it wouldn't have been harassment even if they had a protected characteristic? Thinking about a possible appeal?

The judgment talks about harassment - presumably a belt and braces job aimed at establishing that it wouldn't have been harassment even if they had a protected characteristic? Thinking about a possible appeal?

The reason for considering the factual allegations is metioned in the judgment:

105. We therefore find that the claimant does not have the protected characteristic of gender reassignment.
106. Although having made this finding, it is not incumbent upon is to consider the harassment complaint, we have done so at the request of the parties.

As you suspect, that would mean that if an appeal is made and the finding of law is overturned then a new hearing doesn't need to be held to determine the factual matters. It pretty much buries the prospect of an appeal on that point of law (because even if an appeal succeeds that NB is a protected status, they are still bound to lose on the facts, so why bother appealing?) But - the parties did ask for as much.

didn’t make the correct eye contact or facial expression

Imagine being autistic, with all the social difficulties that that entails, and realising that you work alongside one of these people. I'd argue that tossing into the bin the CV of any non-binary job applicant could be considered a reasonable adjustment for an employer's existing autistic staff.

Cab rank rule means he can't decline the case, nor can he throw it without risking being sanctioned.

I see. I did wonder why the respondents declared themselves neutral on Section 7. There are claims not yet considered, which maybe relate to bullying. I'm having trouble imagining how acts that the ET have said are not/would not be harassment could nevertheless still be bullying. But maybe there were some additional acts (not related to NBness) that weren't brought up in this hearing.

It seems unlikely there'll be an appeal of interest to us.

Edited because quoted post was edited to say the same thing!

No, because of the cab rank rule.