Employment Tribunal indicates that offensive term is not ‘gender-neutral’ in consideration of gender reassignment discrimination

Recent case indicates that employers will need to take common sense approach to insulting terms.

Workplace environments can become heated and it is not uncommon for harsh language and swearing to occur between colleagues in some settings. Language is a tool but is often employed as a weapon by those seeking to bully, harass and demean others, which means employers need to be sensitive to the use of language in the context of protected characteristics.

Whilst swearing can in and of itself be a disciplinary matter, a recent Employment Tribunal decision also highlights how common insulting language can be gender-specific and the potential implications this has for discrimination claims.

Case details: Fischer v London United Busways Ltd [2023]

Miss Fischer worked via an agency for LUB as a bus driver on a busy route in London.

When Miss Fischer joined LUB in 2020 she had the protected characteristic of gender reassignment. She worked for LUB until 16 January 2021. During this period, Miss Fischer submitted multiple complaints about her treatment by colleagues and other third parties. However, following LUB’s decision to terminate her agency role she brought a direct discrimination claim in relation to three incidents.

These incidents included a ‘near miss’ where Miss Fischer claimed another driver had nearly hit her with their bus; an ‘insult’ incident when another driver had called her a ‘wanker’; and her termination. Each incident, Miss Fischer alleged, amounted to less favourable treatment because of her gender reassignment and that a hypothetical comparator driver without this characteristic would not have suffered the same treatment.

Employment Tribunal’s decision

The Tribunal dismissed all of Miss Fischer’s claims, finding that the ‘near miss’ and ‘insult’ incident did not occur on the basis of the facts presented to the Tribunal. The Tribunal also found that, on the balance of probabilities, the decision to dismiss Miss Fischer from her role was taken because of a combination of factors ranging from Miss Fischer’s failure to follow incident reporting procedures, demonstrating questionable driving competency and that by failing to complete her routes she had led LUB to lose income under its agreement with TfL.

Although the claims were dismissed, of particular note is the Tribunal’s contention at paragraph 78 of the decision (linked above) where it dismissed LUB’s argument that the insult could not be discriminatory in nature because ‘wanker’ was a gender-neutral term. The Tribunal’s reasoning was that, at least to the panel assigned to this case, the term used was an insult with clear links and connotations to men and that there were ‘equivalent but different swear words that are used […] to insult women.’

Had Miss Fischer been able to establish that the term had been used against her by a colleague then a gender reassignment discrimination claim may have been successful. Despite this the Tribunal considered  the employer’s ‘all reasonable steps’ defence set out at s.109(4) of the Equality Act 2010 and concluded that the employer had not taken all reasonable steps to avoid being found vicariously liable for this incident.

Comment

The English language is replete with insulting and suggestive language that is commonly understood to have gender-specific applications. The Tribunal here was clear that the use of the term in question was sufficiently closely connected to the claimant’s birth sex for use of the term to make out a prima facie case of discrimination. In other words, gender-specific terms of this kind referring to an individual’s former or assigned gender could constitute harassment or direct discrimination on the basis of gender reassignment. 

It is also true that English continues to evolve and the meaning and understanding of terms evolves over time, often as groups who were the target of words seek to adopt them as a way to claim the term and nullify its impact. That said, employers need to take a common-sense view of the language used in the context of its use and consider carefully on the balance of probabilities what connotations the use of a particular word has. 

The case report on Fischer is useful for employers as the Tribunal took the time to consider the ‘all reasonable steps’ defence in the context of this claim. In particular, paras 130 to 132 note the steps LUB had taken to create an inclusive work environment but also where it could and should have done more.

For example, the Tribunal notes that whilst LUB had an equal opportunities policy and displayed it in the depot, it had not been updated since 2007 (i.e. since before the Equality Act 2010 came into law) and that many drivers spent little to no time in the depot to see the notices. In addition, the Tribunal considered that for an organisation the size of LUB it was surprised that there were not employee minority representative groups and/ or that these did not help to provide feedback or update relevant policies and procedures.