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Gender identity can be a complicated and sensitive topic for employers and employees alike. The landmark ruling of Taylor -v- Jaguar Land Rover (ET1304471/2018), however, provides a recent example of how employers can face drastic consequences where non-binary individuals are not protected from harassment.

In this case, the claimant was an engineer at Jaguar Land Rover and had almost 20 years’ service. In 2017, the claimant 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 Jaguar Land Rover as they said they were subjected to frequent insults and abusive jokes by colleagues. There were also issues with their use of toilet facilities.

As the respondent, Jaguar Land Rover defended the claims on the basis that the claimant did not fall within the definition of gender reassignment under the Equality Act 2010, which was the basis for the claimant’s claims.

Section 7(1) Equality Act 2010 states that, “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

In reaching its decision, the tribunal found that whilst this definition did not unambiguously cover non-binary individuals, it had been Parliament’s intention to protect those on the ‘spectrum’ of gender reassignment, which thus included the claimant. Although this decision is not binding on other employment tribunals, employers would be well advised to consider this decision, given the adverse outcome for the respondent.

Jaguar Land Rover subsequently agreed to pay the claimant substantial damages of £180,000. The 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 tribunal also noted that they had previously come across a failure of this scale on behalf of the employer before.

In order to avoid getting things wrong and, importantly, to ensure that non-binary employees feel supported in the workplace, employers should look to take steps to help non-binary individuals feel included whilst at work. Such steps might include:

  1. Having open channels of communication with non-binary employees to better understand their experiences and requirements.
  2. Updating policies and procedures to include use of non-binary language such as the singular they/them/theirs, instead of he/she.
  3. Adjusting company dress codes to take account of non-binary individuals.
  4. Ensuring equal opportunities policies and procedures are fully inclusive of non-binary individuals.
  5. Making sure staff are aware of equal opportunities policies (in the Jaguar Land Rover case, whilst staff thought there was a policy in place, none had seen it).
  6. Providing regular training to all staff on equality and diversity in the workplace, with specific reference to non-binary individuals.
  7. Ensuring that managers and HR specifically, are fully trained in how to handle conversations around gender identity in a sensitive way (again, in the Jaguar Land Rover case, HR support was described as “woeful” and the claimant was told to “grow a tougher skin” and was asked “What do you expect them to call you?”).
  8. Taking appropriate action where staff are found to be discriminating against non-binary individuals in the workplace. Leaving things unaddressed will not help to resolve problems or boost inclusivity in the workplace. Instead, it will leave non-binary employees feeling vulnerable and expose employers to the risk of discrimination claims.
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