Victoria's direct gender reassignment discrimination

Direct gender reassignment discrimination at work

Direct gender reassignment discrimination is where you are treated less favourably at work because you are going through or have undergone gender reassignment.

An example of direct gender reassignment discrimination at work would be

A male administrator who wants to begin transitioning into a woman tells her manager. She is then transferred from her role as they don’t want her to have any more client contact. 

There have been numerous Employment Tribunal cases that make a claim for direct gender reassignment discrimination. We’ll look at one such claim below.

The background

This case was brought against a retailer after Victoria was hired as a retail assistant from September 2016 to February 2017.

Victoria had been presenting as a female for 16 years, prior to being employed at the store. Her legal name was still Victor, however, she preferred to be called Victoria. Her preference was mentioned during her initial interview.

During her first shift, she had been given a badge and shift schedule with her legal name. She had attempted to change her name within the company’s HR systems, but being dyslexic and having English as her second language, she had incorrectly changed her name to Victor. This led to some confusion among her colleagues about Victor/Victoria. She had attempted to correct them, but her colleagues continued calling her Victor.

During a shift, she had been asked to move some trolleys. The trolleys had been stacked quite high, and she believed this was an implicit suggestion that she was strong enough to handle this task because she was a man.

In another incident, Victoria had been given men’s cologne instead of women’s perfume to spray on herself after a colleague had said “I can smell urine, like a men’s toilet”. She had complained to the supervising manager at that time, where she overheard her colleague saying “It’s a man’s voice” and “deep voice”.

She then filed a formal grievance against her colleagues for the perfume incident and constant comments. The manager had investigated the matter and found that some of her colleagues had been making very personal remarks about Victoria. However, they found Victoria’s colleagues to be more truthful as they had all stuck up for each other. Victoria was never informed of the outcome.

During another shift, she and another colleague were in the ladies' washroom. An electrician had knocked on the door, needing to work in the room. Her colleague had left and told the electrician that “there are no ladies in there”. He then went inside and was shocked to see Victoria. She then asked him to go to HR with her to make a complaint. He agreed.

Her colleague denied this incident when questioned. Her manager noted her colleague’s statement and determined that no further action was needed. Victoria was not made aware of the decision nor was she given the opportunity to appeal.

Throughout her employment, she faced numerous comments from colleagues about her gender transition including “she’s a joke” and stating that “she is evil” towards customers.

She felt so bullied that she decided to make a police report about her treatment at the store. However, this did not change the attitude of her colleagues or management.

During a particularly harsh shift, Victoria broke down and left, stating that she would be sending a resignation letter. However, she did not send her official resignation and was called into a meeting to discuss her unexcused absences thereafter.

While she was waiting to go into the waiting room, her harassers were able to walk by and continue to harass her. She then resigned due to her ill treatment.

Victoria ultimately brought on claims of direct discrimination and harassment related to her gender reassignment.

The result

Victoria’s claims for direct gender reassignment discrimination and harassment related to gender reassignment succeeded because of the constant derogatory comments and behaviour of her colleagues.

While her colleagues were the main perpetrators of the harassment, her company was at fault as well.

As she had brought these concerns to management, she was also subjected to direct gender reassignment discrimination by the company itself by failing to properly investigate Victoria’s complaints and failing to inform her of the outcome or advise her of the right to appeal.

Victoria was awarded a total of £47,433.03. This included an ACAS uplift of 25% for her employer for failing to deal with her grievances properly.

The store was also ordered to implement better policies regarding transgender employees, including providing a confidentiality policy and improving equality training amongst staff.

Important things to remember about this case

You have day one rights to protect yourself against discrimination. You do not need to work for an employer for two years before bringing a Tribunal claim to them for discrimination.

Your employer has a duty of care when it involves your safety. This includes your colleague’s behaviour. This means that even if your employer is not the main instigator, they are still responsible for their employees' behaviour.