Non-binary employees and the Equality Act 2010

The claimant was an engineer at Jaguar Land Rover and had almost 20 years’ service. In 2017, they began to identify as non-binary, and whilst they had previously presented as male, started to dress in women’s clothing.

They brought claims against the respondent as they said they were subjected to frequent insults and abusive jokes by colleagues. There were also issues with their use of toilet facilities.

The respondent defended the claims on the basis that the claimant did not fall within the definition of gender reassignment under the Equality Act 2010.

The tribunal, in reaching its decision, found that the claimant did possess the protected characteristic of gender reassignment, thereby seemingly broadening the definition.

The claimant’s claims for harassment because of gender reassignment, direct discrimination because of gender reassignment, victimisation and constructive unfair dismissal were all upheld.

The respondent subsequently agreed to pay the claimant substantial damages (£180,000). That considerable sum was agreed as Employment Judge Hughes, having heard submissions on the point, found that aggravated damages were appropriate because of “the egregious way the claimant was treated, and the insensitive stance taken by the respondent in defending the proceedings”. The award was also subject to an uplift of 20% because of the respondent’s failure to comply with the Acas Code in relation to a grievance that had been lodged by the claimant. It was further agreed that the respondent would appoint an employee as a ‘Diversity and Inclusion Champion’ and commission a report by a recognised diversity organisation such as Stonewall, to investigate diversity and inclusion throughout the company.

The claimant’s application for costs remains outstanding and will be heard on 22 January 2021.

It is important to remember that this is a first instance decision and as such, it is not binding on other tribunals. However, it reflects the complexity of modern gender identity politics, with many individuals now rejecting the concept that gender is binary.

This case highlights how important it is for employers to be aware of gender diversity issues and to be sensitive towards those individuals who do not identify as the gender they were assigned at birth. Getting it wrong can result in major financial and reputational consequences.

Employers can take practical steps, such as working delicately with individual non-binary employees to better understand their experiences and subsequent requirements, to avoid getting it wrong. More generally, employers should ensure that their policies and procedures are fully up to date, to ensure they are compliant with equality legislation and comprehensive diversity, and inclusion training should be given to staff at all levels of the company.