A landmark employment tribunal ruling has found that non-binary and gender fluid people are protected by the Equality Act 2010.

Discrimination on the grounds of gender reassignment

The Equality Act prohibits discrimination on the basis of a number of protected characteristics, including gender reassignment. This is defined as being transsexual, ie. of a different gender to the one assigned at birth. It is not necessary to have had treatment or surgery, only that someone has either changed their gender or proposes to change their gender.

If someone is discriminated against because they are perceived to be transsexual, they are also protected by this law.

There has been confusion in the past as to whether non-binary and gender fluid people could claim employment law discrimination under the protected characteristic of gender reassignment. The question has effectively been answered by a recent case involving a non-binary person’s treatment while working as an engineer for Jaguar Land Rover.

Milestone ruling

The claimant, Ms Taylor, who is non-binary, experienced difficulties at the Jaguar Land Rover plant where she worked, including harassment and direct discrimination on the grounds of gender reassignment. Jaguar Land Rover had argued that because Ms Taylor was non-binary, she was not protected by the Act, which applied only to those with gender reassignment.

The employment tribunal that heard the case disagreed and upheld her claim of harassment, direct discrimination, victimisation and constructive dismissal, referring to gender as a spectrum and stating that it is ‘beyond any doubt’ that her identity should be included within the protected characteristic of gender reassignment. She received substantial compensation for discrimination, dismissal and the harassment and victimisation she had suffered.

While an employment tribunal ruling does not have to be followed by other courts, it will be persuasive in future cases and employers are advised to bear this in mind when dealing with non-binary employees.

In addition, it is likely that other gender identities may also be protected on the same basis.

What is non-binary?

The term non-binary encompasses a number of identities:

• A gender between that of a man and that of a woman; and/or
• Fluctuating between the gender of a man and a woman; and/or
• Having no gender, some or all of the time.

There are a number of terms for various non-binary identities, such as genderqueer, agender and bigender. Generally speaking, non-binary relates to an experience of gender that is not simply male or female.

Non-binary workers and employers

It is an employer’s responsibility to prevent discrimination at work on the grounds of a protected characteristic, such as gender reassignment. This includes both direct and indirect discrimination, harassment and victimisation.

An employer should have an equality and diversity policy in place that specifically addresses rights for transsexuals and other non-binary workers. This should include a policy against bullying and harassment. Employers should also work to ensure that they and their other workers do not refer to people’s gender incorrectly.

Gender stereotyping and gendered dress codes should be abolished and gender-neutral language used. Policies should be inclusive and expressly state that they are so.

More information about improving the workplace experience for non-binary people is available from the Scottish Trans Alliance.

What does the law say?

The Equality Act makes it unlawful to discriminate against someone on the grounds of nine protected characteristics, one of which is gender reassignment. Following the case referred to above, this can now be assumed to extend to non-binary individuals as well as transsexuals who have or are proposing to reassign their sex.

Discrimination can take place in a number of ways.

Direct discrimination

This is where an employee is treated less favourably than another employee because they are a transsexual or non-binary, for example, they are not promoted or their duties are altered following gender reassignment.

Indirect discrimination

Indirect discrimination occurs when an organisation implements a policy, selection criteria or rules that put those who have had gender reassignment at a disadvantage, without any objective justification. The disadvantage could be in benefits offered, recruitment selection criteria, redundancy selection criteria or flexible working options.

By way of example, if someone undertook a course and it was registered on their records, but after gender reassignment and a change of name the employer refused to amend their records to the new name because of a company policy, it would reveal the worker’s background to any new potential employer, which could put them in a less favourable position.

Harassment

Harassment occurs when an individual is faced with unwanted conduct because of their gender reassignment or non-binary status. This could be behaviour that is humiliating to the recipient or unwanted comments or ignoring or excluding someone.

Employers have a duty to ensure employees do not have to endure harassment and that they can raise the issue without fear of retribution.

Victimisation

Under the Equality Act, victimisation is detrimental treatment when raising a grievance about discrimination. This could be when making the claim, when giving evidence in respect of a discrimination claim or in saying that someone has breached the Act.

Legal advice in respect of non-binary issues in the workplace

Staying up to date with current legislation and ensuring that employees are not discriminated against in breach of the Act can be difficult.

Putting the right policy documents in place will help employees understand what is expected of them in respect of their fellow workers. There should also be clear procedures for raising grievances as well as rules to protect workers from discrimination.

At Springhouse Employment Solicitors we represent employees whose rights have been breached under the Equality Act, including non-binary individuals and transsexuals. Our team is friendly and approachable and we will advise and support you throughout your case, ensuring that we are always available to speak to you to keep you updated as to progress and answer any questions you may have.

If you believe you have been discriminated against and you would like to talk to someone about your options, we would be happy to hear from you.

We also work with employers to ensure that the legal framework underpinning their business is robust and that it offers protection to employees, which in turn will help ensure that legislation is not breached.

If you have a transsexual or non-binary employee who is claiming discrimination under the gender reassignment protection offered by the Act, you should seek legal advice without delay. In the case of a workplace discrimination claim, an employment tribunal process could potentially award substantial damages to compensate for stress and anxiety as well as for any financial loss.

For more information about gender reassignment and the workplace, see our Transgender employment law factsheet.

Contact Springhouse Employment Solicitors

If you are non-binary or you are employing someone who is non-binary and you would like to speak to a lawyer about discrimination     , our experienced employment law solicitors will be happy to help. Contact us today by ringing 0800 048 5888 or fill in our contact form.

Our team is ready to give you clear, accurate advice.