The London South Employment Tribunal (EJ McLaren and lay members) has handed down judgment and written reasons in AB v Royal Borough of Kingston Upon Thames.
The Facts
This case concerned Miss AB (“AB”), a trans woman who worked in the transport department at the Respondent Council (“the Council”). AB transitioned with effect from 1 July 2020, giving her employer 8 months’ notice before she did so. She complained that she was given no support by her employer who failed in its duty of care towards her and had not implemented appropriate policies.
She brought a direct discrimination claim on the grounds of gender reassignment, with 23 instances of less favourable treatment (one of which involved removing her from a number of works that had previously been part of her role) spanning a 17-month period (from 1 July 2020 to 14 December 2021).
The Tribunal heard evidence from the Claimant and the Council’s Senior HR Business Partner, AB’s Team Manager, its Corporate Head of Digital Strategy and Portfolio and the Assistant Director of Highways.
The Tribunal found that the Council had directly discriminated against AB in relation to 10 of the asserted instances of less favourable treatment. It did not find the other 13 instances substantiated.
Of particular interest to readers are the Tribunal’s findings set out below.
Equality Act policies and risk assessment
The Council’s HR Business Partner Ms Bailey accepted that the Council did not handle AB’s transition well. She explained that at the time of AB’s transition there had been an Equality and Diversity Policy Statement in place (updated in 2018), as well as a 2006 Dignity at Work Policy. The Council accepted that these policies were out of date at the time of AB’s transition and for ten years had not been updated in line with the Equality Act 2010 (referring as they did to ‘sexual harassment’ being a form of protection under the ‘Sex Discrimination Act’, including on the grounds of gender reassignment). The relevant policies at the time of AB’s transition stated that harassment of an individual on the grounds of gender reassignment was to be treated as sexual harassment.
Ms Bailey stated that when she joined the department in May 2021, it was recognised that a number of policies needed to be updated and processes were put in place to do that. She was unable to give an explanation as to why this had not been done beforehand.
Ms Bailey told the Tribunal that the learning development points taken from the case had been that equality training around trans people not only had to be provided but had to be repeated periodically. She informed the Tribunal the Council now has a specific trans equality policy, developed in consultation with AB, and first published in December 2022. That has now been reviewed in consultation with the LGBTQ+ staff network and re-published in January 2023. It will be subject to periodic review, and the Council now has a policy review system in place in the form of a spreadsheet identifying appropriate policy review dates.
The Tribunal asked how e-learning was monitored. Ms Bailey confirmed that the relevant HR departments identify the population that needs to take the training and they provide managers with details of those who have not done so. Managers are expected to chase up and ensure compliance.
While the Tribunal found that the Council failed to incorporate the Equality Act obligations into its policies, and did not have any policy in place that would assist individuals like AB, and indeed that its policies and practices in place at the time of AB’s transitioning were “woefully inadequate”, it did not find this to be an instance of direct discrimination, but “part of a wider unexplained and uninvestigated HR failing”. It was not, the Tribunal found, targeted at the Claimant or because of her protected characteristic.
Deadnaming
‘Deadnaming’ is the use of a trans person’s pre-transition name which will often relate to the gender they have rejected. In common with ‘misgendering’ – referring to a trans person using pronouns or gendered language referring to their pre-transition gender, this is regarded as highly offensive by the great majority of trans people.
On transition, AB had adopted a female name and pronouns, rejecting her previous male name and pronouns.
AB’s name was not updated on the Council’s pension records until 8 August 2022, over two years after her transition. Her name was not updated on the CRM highways complaint system until 22 February 2022. She stated that there were no policies in place or guidance for IT and, consequently, she was deadnamed on the Council’s directories and email systems for nearly 2 years. She was unable to contact anyone to try to stop it without outing herself to a committee of people. The Tribunal found this was not fully rectified until after 9 March 2023.
After transition it took two years to correct AB’s door pass – which allowed access into the office and gave access to operate the printers. When she got into the building her locker had a post-it note with her dead name crossed out and her post-transition name written on it, in full view of everyone. This was not rectified until April 2022.
AB also complained that she had issues obtaining a vehicle pass, and had to call third party agents who questioned her about her name change and was deadnamed and misgendered on these calls, which she found demeaning and degrading.
Ms Bailey stated that the Council had learnt a lesson as a result of what happened to AB. She said that in future the Council will take a proactive role in having systems changed and there will be a conversation with the individual to offer a choice of a new account and records opened in a new name, or having existing records amended. She said support will be given in future with regard to contacting external service providers.
Mr Grasty, Corporate Head of Digital Strategy and Portfolio, explained that he believed IT matters had been sorted out by July 2021. However, AB’s dead name was used in an email in June 2022 because an old server had cached her dead name and once that was found it was fixed.
The alleged discriminatory deadnaming acts were as follows:
The Respondent admitted that the first five acts occurred.[1] Following an internal grievance which had found in her favour the Council admitted that a number of the acts of deadnaming amounted to unlawful discrimination. The Tribunal found that all of these acts amounted to less favourable treatment because of AB’s protected characteristic of gender reassignment. The Council accepted AB had the protected characteristic at all material times.
What the Tribunal did not find proven
As mentioned above, AB brought 23 claims (one with a number of sub-claims) spanning an almost 18-month period. These included a claim that her contact with Councillors had been removed in December 2020 and a reprimand had been given to her by her line manager for contacting a Councillor directly. This related to issues in autumn/winter 2020 when AB had emailed a Councillor setting out her views on why local residents were opposing a lighting project in a conservation area. Her email concluded that the only way forward was to try and find an equivalent luminaire to the existing one which would require the residents to help towards costs. This was sent after AB had been asked to prepare a draft letter from the Councillor to residents (although it was not clear if she had seen this request first).
Subsequently, AB’s manager gave instructions to his team of three that emails to Councillors had to be approved by their line manager. Despite this, AB then wrote to a Councillor, without seeking preapproval by her manager. She then received an email from her manager explaining that he had given very clear instructions that responses have to be run by him before being sent out to councillors and he thought they needed to meet to discuss this and a meeting date would be sent out. The Council accepted this was a reprimand.
The Tribunal held that on the balance of probabilities the instruction to seek pre-approval of communications to councillors was given “because of the greater desire to protect the relationship with councillors in the light of the review (into whether the Council’s shared environment service was still fit for purpose) and genuine concern about the way in which the claimant was corresponding.” While the instruction was put in place because of and as a result of the Claimant’s actions, it was not motivated by AB’s protected characteristic. The reprimand was justified in light of AB’s failure to follow a reasonable management instruction.
Tribunal Award
There had been no actual loss of earnings so the tribunal considered what award of compensation for injury to feelings within the ‘Vento’ bands was appropriate. The tribunal found that this was a ‘middle’ band case and considered the substantial if short term effect on AB including on her health. They awarded £21,000, and with interest the total award came to £25,423.
Lessons for Employers and those advising them
The Tribunal’s written reasons offer a host of learning points for employers and HR professionals on the way to treat trans people properly within the workplace. These build on the Employment Tribunal’s previous rulings in particular in two previous cases which both resulted in substantial monetary awards to transgender claimants:
and which ordered (by consent) that:
A few good practice points to highlight from the AB case are:
(As an example, Old Square Chambers discovered that its systems to bill clients needed to be amended to add ‘Mx’ to the list of possible honorifics to ensure that non-binary clients could be correctly referred to.)
This case is also a helpful reminder that employers can go some way towards providing redress to an aggrieved employee by admitting where they got things wrong and seeking to do better.
Where disputes escalate to Employment Tribunal proceedings, it is sometimes appropriate to admit fault where, as here, HR or IT processes have gone wrong, resulting, in this case, in an employee being deadnamed for two years. A failure to admit clear fault might amount to the basis for a further victimisation claim or found a claim for aggravated damages.
Where an employer does realise it has made mistakes in its approach towards trans individuals, an apology can go a long way. In the Tribunal’s ruling, it considered the Council’s lack of a formal apology added to AB’s distress and took that into account when awarding injury to feelings.
This case also serves as a helpful reminder that where discriminatory conduct has taken place, it can lead affected employees to develop a negative view of their employer, potentially leading them to make unwarranted claims in respect of non-discriminatory conduct. In order to minimise this risk, it is recommended that employees’ concerns are engaged with seriously, addressed, and ideally remedied as soon as practically possible.
Please note; discrimination claims are inevitably fact-specific and this article should not be taken to be legal advice on any other case.
Robin Moira White of Old Square Chambers acted for the Royal Borough of Kingston in the AB case.
[1] The reasons do not state the position in respect of 3.19.
