Navigating allegations & bias: Lessons from Virgin Active Limited v Hughes
The importance of proper assessment of comparators to ensure fairness in employment discrimination cases.Read more
In the recent case of AB v Royal Borough of Kingston upon Thames, an employment tribunal has held that the employer had committed several acts of direct discrimination against a trans woman, including deadnaming her. “Deadnaming” occurs when a transgender person is referred to by the name they previously used before their transition.
The claimant, Miss AB, worked in the transport department at the council. Miss AB transitioned, giving her employer eight months’ notice before she did so. Upon her transition, Miss AB adopted a female name and pronouns. However, it took the council nearly two years to put those name changes in place in their systems. This affected her pension records, office door pass, parking pass, email system and the staff directory.
The tribunal found that she was unable to contact anyone to try to stop it without outing herself to a committee of people. Her locker had a post-it note put on it with her deadname crossed out and her post-transition name written on, in full view of everyone.
The tribunal held that the instances in which the council used Miss AB’s deadname amounted to less favourable treatment and that this was because of her protected characteristic of gender reassignment. Other behaviour of the council, such as removing work from her and demanding an apology for raising an unofficial complaint, were also found to be because of her protected characteristic.
Miss AB complained that the council did not have appropriate policies in place to cover its obligations under the Equality Act 2010. The tribunal held that the policies the council did have in place were out of date and ultimately would not assist individuals like Miss AB. It also found that the council had not provided appropriate training to its staff, meaning that there was a failure to provide guidance to staff undergoing transition and to team managers.
However, the tribunal found that this did not amount to direct discrimination as it was not targeted at Miss AB nor was it because of her protected characteristic but it was “part of a wider unexplained … HR failing”.
The tribunal found the deadnaming had caused Miss AB significant distress and had contributed to a deterioration in her mental health. She was awarded £21,000 as compensation for injury to feelings plus £4,423 in interest.
This case gives some useful reminders to employers. Firstly, employers should ensure that they have equality and diversity policies in place and that these are kept up to date with current law. Training should be carried out with staff on such policies. Secondly, although it seems obvious, employers should be proactive to ensure employees who have transitioned have their names and pronouns correctly and promptly changed across all mediums.
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