Gendered Insults Against Transgender Employees: Gender Reassignment Discrimination?

In the recent case of Fischer v London United Busways Ltd, the employment tribunal held that use of a gendered insult against a transgender worker could amount to gender reassignment discrimination.

Facts

In this case, Miss Fischer, a transgender agency bus driver, brought a direct gender reassignment discrimination claim against London United Busways.

One of the incidents specified in her claim was that whilst at work a colleague called her a derogatory term generally directed at men.

Miss Fischer claimed that the incident amounted to less favourable treatment because of her protected characteristic of gender reassignment. She also asserted that London United Busways were vicariously liable for the incident since the comment was made during the course of her colleague’s employment.

Decision

Although ultimately the tribunal concluded that the alleged incident did not take place, the tribunal held that if the incident had in fact occurred, this would be sufficient to establish a prima facie case of discrimination. The tribunal’s rationale for this was that the alleged insult was not a gender-neutral term but one that is generally applied specifically to men rather than women.

The tribunal also considered that London United Busways had taken insufficient preventative action to rely upon the “reasonable steps” defence to the discrimination claim. In particular, the tribunal pointed out that:

1. The company’s equal opportunities and harassment policies from 2007 were outdated and did not refer to the Equality Act 2010.
2. The policies were not readily available as they were pinned to noticeboards at the depot where drivers did not spend much time.
3. There was a lack of understanding and awareness of LGBTQ+ issues across the company. One of London United Busway’s witnesses in the case was unaware of the terms “cis” and “trans”.

Implications for employers

This tribunal case highlights the care that employers need to take to prevent gender reassignment discrimination in the workplace.

The judgment lists examples of steps that employers can take to prevent such discrimination and may enable them to rely upon the “reasonable steps” defence to any potential claims. These include:

• Making diversity and inclusion a focus within policies so that all employees feel welcomed and accepted
• Ensuring that policies are easily accessible and understood by all staff
• Establishing employee representative groups to provide support (e.g. a LGBTQ+ group)
• Raising awareness of equal opportunities by holding regular training sessions
• Making staff aware of acceptable and unacceptable language and behaviour in the workplace

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