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The ET dismissed claims from a non-binary employee over misgendering and record errors, ruling on harassment and protections under the Equality Act.
29 January 2026
Case Study
In this case a non binary member of staff (“Lockwood”) claimed that they had been subject to discrimination following their decision to transition.
They had been born female and became non binary, reflecting this change in adopting a non gender specific first name and use of neutral pronouns. The employer (“the Trust”) supported them by updating it’s records and adhering to their wishes.
However, some records (such as the original contract of employment signed when they had been female) and some aspects of the IT system still referred to their previous gender/name. There were also incidents over contact with the IT helpdesk and the misgendering of them by an internal vaccination clinic. Lockwood brought claims before the Employment who dismissed the claims on two grounds, as explained below.
Case Study
In terms of alleged harassment the ET found that ‘violating’ someone’s dignity is more serious or significant than offending or hurting them.
In considering whether these incidents had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Lockwood, it concluded it didn’t because many staff were unfamiliar with they/them pronouns and on each occasion where Lockwood complained, they received an apology and managers put in place positive steps to change things. By contrast, the ET found that Lockwood was unwilling to accept the apologies they had been given, adopted an inflexible stance and was unforgiving when mistakes occurred. The ET found that the employee therefore contributed to the environment they complained about.
The Claimant had therefore not established that they had been subject to harassment.
In a significant finding, the ET in this case found that gender fluidity was not protected by the Equality Act. This is at odds with the established case of Taylor v Jaguar Land Rover which held that gender reassignment is a “journey” and that non binary and gender fluid individuals were protected. However, in this case, Lockwood was found not to have that protection as they were not moving from one sex to another, but instead moving away from their birth sex.
In their decision, the ET focussed on the precise wording in the Equality Act- reassignment as a move from one thing to another- and found that interpretation to align with the Supreme Court’s decision in For Women Scotland that the Equality Act’s reference to sex means ‘biological sex’, which is binary – either a woman or a man. This could have significant implications for the protection (or lack thereof) for non binary and gender fluid individuals.
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