Employment Appeal Tribunal
Appeal against a decision of the EAT dismissing the applicant's claim of direct sex discrimination by her employer. The applicant ('C') began working for the Post Office in 1987. She was then a man. In 1998 C had a week away from work and returned in a female role. C wished to use a particular female toilet but female staff who had known C for a long time as a man were not happy with C using that facility. The respondent's view was that C could use the female toilet when she had undergone gender reassignment surgery. In the meantime C used a disabled toilet on a temporary basis. C did not want to do so on any long term basis since it would be an obstacle to gain acceptance as a female. The respondent told C that if she insisted on using the female toilets she would be suspended for insubordination. The respondent declined to give a date on which C could use the female toilets. C then resigned claiming constructive dismissal and sex discrimination. The Employment Tribunal dismissed her claims holding that before gender reassignment surgery, C remained male for the purposes of applying the Sex Discrimination Act 1975. The EAT dismissed an appeal. C appealed arguing that it was unlawful for an employer to refuse to allow a pre-operative transsexual who presented as female to use the female toilets or to require her to use only a unisex toilet.
HELD: (1) The respondent could not escape liability on the basis that C was at the material time a man and that prohibition on the use of the female toilets meant that she was treated no differently than other men. A permanent refusal to permit someone presenting as a woman from using female facilities could be an act of discrimination even if the person had not undergone final surgical intervention (Bellinger v Bellinger (2003) 2 WLR 1174 and Goodwin v UK (2002) 35 EHRR 18). (2) However a formerly male employee could not by presenting as female necessarily and immediately assert the right to use female toilets. (3) The tribunal had to make a judgment as to when the employee became a woman and was entitled to the same facilities as other women. (4) The employee was not treated less favourably than a man who could not claim to use the female toilets. The employee was not treated less favourably than other women employees unless and until she could establish that she should be treated as a woman. Acquiring the status of a transsexual did not carry with it the right to choose which toilets to use. In the particular case of toilet facilities the employer was not bound by the employee's self-definition in determining whether the change to female gender had occurred. (5) The moment at which a person in C's position was entitled to use the female toilets depended on all the circumstances. On the facts found by the tribunal there was no unlawful discrimination against C in this case. The measures taken by the employer were appropriate ones in the circumstances. The employer was entitled to rely for a period of time on the unisex disabled toilet as a sufficient facility. The employer maintained a flexible approach and it was not unreasonable in the circumstances to decline to give a firm date by which C could use the female toilet. The time had not come when the employer was obliged to permit C to use the female toilets. (6) C's anatomical sex was a factor relevant to the decisions which the employer had to make and the tribunals were right that the request for information on that subject did not provide the basis for a discrimination claim. (7) There were acts of discrimination by other employees but the employer had a statutory defence under s.41(3) of the 1975 Act. The tribunal made the correct assessment under s.41(3) when concluding that the employer took such steps as were reasonably practicable to prevent employees from doing harassing acts. (8) It followed that there was no conduct by the employer which gave rise to a constructive dismissal of C.
 IRLR 592
William Meade (Senior Clerk)