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An Employment Tribunal has ruled that the use of gendered swearwords to insult a trans member of staff may be discriminatory
By Michael Nadin – Partner, specialist Employment law solicitor
Workers are protected against discrimination by the Equality Act 2010 (EqA) and gender reassignment is a protected characteristic under the EqA.
In the case of Fischer v London United Busways Ltd (ET/2300846/2021), Miss Fischer, a trans woman, was an agency worker engaged as a bus driver by London United Busways Ltd (LUB).
LUB terminated her engagement after three months and Miss Fisher brought a claim of direct gender reassignment discrimination under the EqA 2010.
One of the alleged incidents of discrimination relied upon by Miss Fischer was that a colleague had called her a “wanker” while they were at work.
She alleged that this was less favourable treatment because of her gender reassignment.
LUB denied that this incident had taken place, but that even if it had, LUB was not responsible because it had taken all reasonable steps to prevent one of its employee’s acting in this way.
A majority of the employment tribunal panel found that Miss Fischer’s colleague had not called her a wanker, therefore her discrimination claim based on this allegation failed.
However, in reaching this conclusion, the tribunal accepted that, if such an incident occurred, it would have been enough to establish a prima facie case of gender reassignment discrimination.
The rationale behind this is that the word “wanker” applies to men, and that there were equivalent but different swearwords that were specifically used in common parlance to insult women. Therefore, the term was not gender neutral.
Employers should therefore bear this case in mind when dealing with similar allegations.
Despite the fact that the tribunal found that the incident didn’t happen, they still considered whether LUB could have defended such a claim on the basis that they had taken all reasonable steps to prevent their employees insulting a trans person in this way.
The Tribunal found that LUB had not taken all reasonable steps to prevent the incident and helpfully set out the additional steps which should be taken by LUB, including:
- LUB’s policies and procedures were last updated in 2007 prior to the EqA 2010. They needed to update their policies more frequently.
- Making it clear that its equal opportunities policy applied to agency workers.
- Focusing on equality and inclusion in its policies, rather than on equality alone.
- Making its policies readily available to staff and ensuring that they were understood. Regular and refreshed training on equality, diversity and inclusion was essential.
- Ensuring its equal opportunities policies complied with the EHRC Employment Statutory Code of Practice.
Though not binding on future tribunals, this case should serve as a warning to businesses, and make it clear what measures employers should take to ensure compliance with the EqA 2010.
The list of additional “reasonable steps” that the tribunal identified is a helpful reminder of how important it is to have up-to-date policies and procedures and to ensure that your employees are made aware of expected behaviours in respect of equality, diversity and inclusion.