Transgender employee wins direct discrimination claim for deadnaming

Employee received £25,000 in compensation for repeated incidents over more than two years.

Trans rights in the UK have been hotly contended over the last few years and we continue to see useful judgments from the employment tribunal and courts covering trans rights in an employment context.

Last month we highlighted the case of Fischer v London United Busways Limited in our article ‘Employment Tribunal indicates that offensive term is not ‘gender-neutral’ in consideration of gender reassignment discrimination’ where an employee unsuccessfully brought claims for discrimination because of their transgender status. A recent decision provides an example of where the claims of a transgender employee were upheld against their employer.

Case details: Miss AB v Royal Borough of Kingston upon Thames [2023]

The claimant, AB, gave eight months’ notice of her intention to transition before eventually doing so in July 2020. In September 2020 AB raised several concerns that she had about proposed highway lighting. Her managers were initially split on her view, with some of the managers insisting they did not want to hear ‘no’ and that her role was to get on with finding solutions.

This led to a worsening relationship between AB and her managers, until in December 2020 she wrote to one of them claiming that she had been singled out and raised the prospect that she was subject to discrimination. The manager in question demanded an apology from AB for making this allegation, and the claims were not investigated.

Eventually AB raised a formal grievance in Summer 2021 which, among other things, claimed she had suffered detrimental treatment because of her transition. This treatment included how the Council had responded to her initial complaints and concerns and how she had seen a reduction in her role and responsibilities over time.  

Against this background, AB experienced what the tribunal described as a ‘long and painful struggle’ with the Council’s systems to change her name. The tribunal established that, amongst other incidents, AB suffered deadnaming (where a trans person’s pre-transition name is used post-transition) in respect of the following:

• She was unable to change her name on her pension records until August 2022;
• She could not update her name on a highways complaint system until February 2022;
• The Council’s IT systems, in particular directories and emails, were not fully changed until March 2023; and
• It took the Council two years from AB’s transition to issue a correct door pass that gave her access to the offices and to operate printers. When AB did get into the building, she found her locker had a post-it note on it with her deadname crossed out and her post-transition name written on it, in full view of everyone. This was not rectified until April 2022.

On the evidence presented, the tribunal upheld AB’s claims of direct gender reassignment discrimination for the following events:

• The various deadnaming incidents set out above;
• The incident whereby the manager demanded an apology from AB for making allegations against him; and
• AB’s removal from various areas of work and responsibility.

Whilst the tribunal noted that the Council had made significant strides forward in regards to updating policies, procedures and training around supporting transgender people, it noted that the policies were significantly out of date at the time of the claimant’s transition and it was critical of the failure of the Council to deal with AB’s complaints when they arose. In particular, between December 2020 and the investigation of AB’s grievance in mid-to-late 2021, the tribunal noted that no proper investigation into the issues complained of was made and the evidence provided suggested that AB’s managers did not take her claims seriously.

The tribunal awarded the claimant £21,000 as compensation for injury to feelings, with £4,443 awarded in interest, calculated from the date of the earliest incident of direct discrimination.

Comment

This case is a first-instance decision and as such creates no precedent for other cases. However, there is much here for employers to learn from.

The tribunal was critical of the Council’s failure to grapple with AB’s complaints and, on the balance of probabilities based on the evidence presented, it was minded to find the failure to investigate linked to her gender reassignment. In a similar vein, the tribunal found that the Council’s decision to remove her from certain roles and responsibilities was also because of her gender reassignment.

This case underlines the risks presented by the burden of proof in discrimination claims where, if a claimant can establish a prima facie case of discrimination, the burden shifts to the respondent to prove they did not take their action for discriminatory reasons. In this case it seems that, by failing to investigate AB’s complaints, the Council was unable to evidence any lawful reason for the less favourable treatment.

The other key lesson here sits parallel to the Fischer case we reported on last month, in that the Council were also shown to have outdated policies and had failed to properly incorporate the Equality Act 2010 into either its policies or working practice. In addition, the Council did not have adequate training or protocols to deal with the practicalities of the claimant’s transition.

Employers would be wise to learn from these two cases which have appeared in quick succession. It is advisable to ensure that policies and protocols for supporting trans employees are in place and kept up to date, rather than waiting until the time a trans employee actually needs that support.