Non-Binary and Gender Fluid employees are protected from discrimination!

The Birmingham Employment Tribunal recently made a decision, in the case of Taylor v Jaguar Land Rover Limited, that under the definition of gender reassignment within the Equality Act 2010, a person is not required to undergo any specific medical treatment in order to be considered protected under this legislation.

In the case of Taylor, the Claimant advised Jaguar that she was transitioning from male to female in 2017 and, as a result of the transition, she suffered harassment and discrimination in the workplace that was so unpleasant for her that she had no choice but to resign. The Tribunal found in Ms Taylor’s favour and concluded that she had suffered from numerous instances of discrimination and harassment and that was she was constructively dismissed.

By way of a defence, Jaguar had suggested that Ms Taylor does not fall within the definition of the gender reassignment protected characteristic under the legislation because she was not “…undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex…” as she described herself as ‘gender fluid’ and ‘non-binary’. However, the Tribunal dismissed this defence and concluded that Ms Taylor was indeed in a transition period and thus was “…on a journey…” which did not necessarily require a specific medical treatment.

So, what does the decision actually mean for employees?

This offered more clarity on the legislation and should give employees some further reassurance that they should not, under any circumstances, suffer  from any discrimination or harassment in the workplace on the basis of how they choose to identify – whether they had or are undergoing medical treatment as part of their transition or not. Therefore, we trust that this decision will give employees more confidence that their rights are protected and to assert those if they feel that they are being mistreated in any way.

And what should employers be conscious of?

Again, it is quite straight forward – employers should not allow any of their employees to be treated any differently as a result of any protected characteristic, or anything which is outside of the person’s control (meaning their conduct or performance). Inevitably, this will also mean that any employee that identifies as transsexual, non-binary or gender-fluid, whether it is from the outset of the employment relationship or transpires during the employment relationship, should not be treated any differently than their counterparts.

Best practice for these types of situations, where employees may be protected under the Equality Act for a host of reasons, could well be dealt with within the terms of a great Diversity and Inclusion policy or statement to show the employer’s commitment to fairness and equality in the workplace.

Our expert employment team is on hand to advise you on any potential unfair or degrading treatment that you may have suffered in the workplace, or to help an employer get ahead of the curve to ensure that they have the correct policies and procedures in place to avoid any untoward type of behaviour. The law in this area is complicated and so there are no stupid questions, and it is always safer to ask about best practices, instead of assuming to know best and then, potentially, making a mistake. So please do not hesitate to contact our team on 020 7940 4060 or email us on employment@anthonygold.co.uk