Employment Law Cases

Miss A de Souza E Souza v Primark Stores Ltd

High Street retailer liable for substantial award for discriminating against a transgender employee.

Background

Gender reassignment is a ‘protected characteristic’ under the Equality Act 2010.

When she applied for a job at Primark in 2016, De Souza E Souza told them that she was transgender. Her birth name, Alexander, appeared on her passport, but she told the interviewer that she would like to be called Alexandra. The interviewer said the company had to use her official name for pay, but she could use whatever name she liked on her name badge. Before she started work, HR staff mistakenly changed her name on the company’s IT system from Alexandra to Alexander, and her title from Miss to Mr. Despite using her preferred name for some weeks, a supervisor began calling her Alexander and laughed when corrected. She alleged that staff sprayed men’s perfume over her until until she started coughing, said she had ‘a man’s voice’, made comments about her sexuality, and called her ‘evil’ and ‘a joke’.

Complaints were made about the way other employees had treated her, including an incident when a colleague claimed there were ‘no ladies’ in the female toilets when an electrician needed access, despite de Souza E Souza being there.

She claimed her complaints were not taken seriously and she was simply told to calm down as she was ‘drawing attention to herself’.

Tribunal decision

The tribunal found that she had been constructively dismissed because the harassment and resulting lack of action led to her resignation. Primark failed to deal with the matter appropriately, which the tribunal held was direct gender reassignment discrimination. She was awarded just over £47,000 compensation to cover injury to feelings (£25,000) and loss of pay and pension contributions (nearly £20,000). The award included a 25% ACAS uplift.

The tribunal also recommended that Primark should:

• adopt a written policy on how to deal with new or existing staff who are transgender or who wish to undergo gender reassignment
• include a reference to the existence of a policy of confidentiality regarding transgender new starters in training materials for managers
• amend the materials used for equality training of staff, management and HR to include references to transgender discrimination
• ensure that transgender discrimination and harassment is referred to in all its equality and harassment policies, and
• add content into training materials on handling grievances

Link to judgment: http://www.bailii.org/uk/cases/UKET/2017/2206063_2017.html

Comment

You should handle any allegations of gender identity discrimination as seriously as any other alleged discrimination. Although the protection currently offered by the Equality Act is fairly narrow, applying to transsexual and gender reassignment rather than wider gender identity issues, ACAS and the Women and Equalities Commission have both recommended changes to the law to encompass all gender identity issues and also increased education in the workplace. You should make line managers aware that it is just as much a protected characteristic as, for example, disability or race. Prudent employers will take note of the tribunal’s recommendations and make sure their equality/harassment policies are robust.