ET Ruling on Changing Room Access, Sex, and Gender Reassignment
ET finds indirect sex discrimination where trans woman used female changing rooms, highlighting employer obligations and staff rights.
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Case Study
World Travel and Tourism Council (WTTC) is a not-for-profit organisation that represents the interests of the global private sector tourism industry. The second respondent, Gloria Guevara, is its President and CEO and the third respondent, Emilio Gracia, is WTTC’s director of Human Resources (“HR”).
Mr Nicol had been employed as a consultant for the WTTC since 2011 and in May 2019 commenced employment as the Company’s Vice-President of Communications and PR. Mr Nicol was dismissed for reason of redundancy by the WTTC in October 2019.
Following his dismissal, Mr Nicol claimed that he had been unfairly dismissed and was subject to detriment as a result of protected disclosures that he had made. Mr Nicol claimed to have raised concerns about the President and CEO of WTCC in an email sent to two HR consultants. Shortly after, further concerns were raised by other members of staff. The President and CEO was told about the complaints made by the individuals about her management style but not the specifics of the complaints. Shortly after this, Mr Nicol was dismissed.
WTTC defended the claim on the basis that the person who dismissed Mr Nicol (the President and CEO) did not know the specifics of the disclosures that Mr Nicol had made.
Case Study
The employment tribunal rejected Mr Nicol’s claims that he had been unfairly dismissed or that he was subjected to any detriment. The tribunal said that in order for this to be found, the decisionmaker (in this case the President and CEO) must have been aware of some detail regarding the disclosure made.
Mr Nicol appealed to the Employment Appeal Tribunal (EAT) on the grounds that as long as a protected disclosure had been made and the decision maker knew that a disclosure had been made, it was not necessary for the decision-maker to know the detail of what had been disclosed.
The EAT, dismissing Mr Nicol’s appeal, held that the tribunal did not make a mistake in deciding that the decision-maker needed to be aware of some of the detail of what had been disclosed in order to be accountable for any subsequent detriment and it was insufficient that the decision-maker knew that a disclosure had been made.
This case emphasises that in a whistleblowing case, the decision-maker or person who is alleged to have caused the detriment must have an understanding of the content of the protected disclosure in order to be held liable for automatically unfair dismissal or detriment.
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