Published 30th November 2020
A case which comes as a relief to many people, and an exciting moment, as gender diversity is anticipated to be a big topic for development in the new decade. For the first time, we have seen the Employment Tribunal extend its arms to protect gender characteristics further under the Equality Act 2010. Protection now falls outside of the binary spectrum, widening the scope for future discrimination cases against gender-fluid individuals.
This landmark case saw claimant Rose Taylor, who worked at the Midlands car manufacturer Jaguar Land Rover and changed the way she identified in 2017, winning to be the first claim of its kind. She faced discriminatory comments and treatment in the workplace as a result of her gender identity.
Previously under The Equality Act 2010, non-binary and gender-fluid did not meet the definition of ‘gender reassignment’. Legally, it only conferred protection for binary transitions between male or female. At the point when the Act was proposed through the House of Commons, the Government regarded gender as a spectrum. The Tribunal, therefore, ruled in their minds, that there was absolutely no doubt that a non-binary or gender fluid person who had moved away from their birth sex to another point on the spectrum, was entirely within Parliament’s intention when it passed those provisions of the Equality Act 2010. Therefore, she was protected.
A significant table turner?
It is inevitable that large corporate organisations such as Jaguar Land Rover will have non-binary employees in all levels and departments of their organisation. These organisations will often have the resources to provide training, and education on how to adopt Corporate Social Responsibility, which supports diversity and inclusion. However, they don’t always get it right and there still seems to be a huge lack of understanding in this area.
The case broadens the ability to let the public know that they should be ready to accept diversity and inclusion of gender fluid individuals, and this will help to prevent discrimination in the workplace.
Interestingly, the Employment Tribunal in the case, also considered it appropriate to award aggravated damages, because of the egregious way the Claimant was treated and because of the insensitive stance taken by the Respondent and Counsel when cross-examining the Claimant at final hearing.
Aggravated damages are rarely awarded in tribunal cases. This was therefore very significant and a warning to employers not to adopt this aggressive and insensitive stance in tribunal proceedings.
The Tribunal also made recommendations to alleviate the claimant’s injury to feelings by ensuring the Respondent takes positive steps to avoid this situation arising again. This Judgment is a key turning point, it signifies that change is in the horizon, and the legal scope on equality is ready to make amendments to move with societal change.
How can employers encourage a change?
To make your workplace more inclusive, ensure that all members of staff are aware of the need to reinforce and be inclusive of non-binary individuals.
- How is your workplace designed? Does it support the LGBT+ community or Is it only designed to support the binary spectrum? For example, do you only have male and female toilets?
- Visuals such as flags and calendar dates which support the LGBT+ community in the workplace could envisage respect and inclusion and prevent discrimination.
Please also see my article on Diversity and Inclusion in the workplace [add link to second article]
The Legal professions Stance on Diversity and Inclusion:
It is well established that the legal profession is traditionally pictured as a binary one. However, progression in this regard is clearly being developed. Historically, the legal profession was very male-dominated. However, now some of the most successful Judges in the Supreme Court are female and we are noticing a steady increase in female CEO’s across a variety of firms. However, it is now the time to develop our understanding and acceptance of individuals who identify as gender fluid.
Taylor v Jaguar Land Rover has opened this debate to the legal profession. We must now accept the reality that we have non-binary, gender fluid people within our own communities, and industry. We should be aware of this and adopt an inclusive approach to the law and determination of case judgements. A failure to do so, is in my opinion, a moral failing.
It is important now that law firms should commission the culture of their firm to educate and install inclusivity and diversity. This could be through the training of its staff, via charities it supports, or even the approach to diversity in its recruitment selection process.
Our own employment lawyer, who specialises in discrimination claims, Imogen Hamblin at Thrive has conducted an insightful podcast for the Law Society on the significance of the case. It features Robin White, Lui Asquith, and Imogen Hamblin, individuals in the legal profession discussing their interpretation, and personal experience of gender fluid inclusion in the industry:
Imogen is an ally and advocate on behalf of the trans and non-binary community. Imogen identifies as a cis-gendered lesbian woman. Imogen has recently joined the LGBT+ Committee of the Law Society, building on her previous work to raise diversity and inclusion across the profession.