Gendered insult may amount to gender reassignment discrimination
An Employment Tribunal has indicated that using a gendered swearword to insult a transgender colleague could constitute discrimination. The Tribunal also clarified what might be meant by taking "all reasonable steps" to prevent discrimination.
In the case of Fischer v London United Busways (LUB), the claimant was a transgender woman engaged as an agency worker by the respondent. Following the termination of her engagement, she brought a claim of direct gender reassignment discrimination under the Equality Act. One of the alleged incidents forming the basis of her claim was that a male colleague had used a gendered swear word to insult her, and that LUB was vicariously liable as a result.
LUB denied that the incident had taken place. It argued that even if the word had been used, LUB was not vicariously liable because it had taken all reasonable steps to prevent such incidents.
Gendered insult
The Tribunal found that the insult incident had not occurred, and that therefore the claim based on this allegation could not succeed. However, had the gendered swear word been used against the claimant, this could have amounted to gender reassignment discrimination. The swear word was not gender neutral as LUB claimed; it was in the tribunal's view used to apply to men, and there were equivalent but different swear words applicable to women.
Reasonable steps defence
Given the Tribunal's findings of fact in relation to the alleged incident, the claim did not succeed. However, the Tribunal nevertheless considered whether LUB would have been able to defend the claim on the basis it took all reasonable steps to prevent the discrimination. The Tribunal concluded that it had not taken all such reasonable steps, so this defence would not have been available.
LUB had taken some steps to prevent discrimination. For example, it had equal opportunities and harassment policies and operated a "zero tolerance" approach in relation to their enforcement. However, the policies were not kept up to date and referred to old discrimination legislation no longer in force. The policies did not clearly apply to agency workers and focused on equality alone, rather than equality and inclusion.
Aside from its criticisms of LUB's policies, the Tribunal noted that it had not set up an employee representative group such as an LGBTQ+ group, which the Tribunal remarked was surprising for an employer of LUB's size. It also criticised a lack of staff training and the lack of knowledge displayed by some of LUB's witnesses.
Learning points
This is a first instance decision which is not binding on future Tribunals. The decision is nevertheless a helpful example of the sorts of action employers might take in order to reduce the risk of discrimination.
It is important to acknowledge that the list of potential reasonable steps LUB could have taken to prevent discrimination will not necessarily apply to every employer. Individual circumstances will be taken into account, as well as the size of the employer and the resources available to it. However, some of the points on the list, such as keeping policies up to date and rolling out appropriate training, are likely to universally applicable.