October 2020 welcomed the judgement of the landmark case of Taylor v Jaguar Land Rover Ltd. This case, while still being a judgement at first instance, provides welcome guidance on who is protected under s7 of the Equality Act 2010.
In 2016 both ACAS and the Women and Equalities Select Committee recommended amending the protected characteristic of gender reassignment in the Equalities Act 2010 to read ‘gender identity’, to make it absolutely clear who would be protected, but this was rejected by government.
This case involved Ms Taylor who had been employed by Jaguar Land Rover for 20 years as an engineer. Ms Taylor had previously presented as male however in 2017 confirmed to her employer that she identified as gender fluid/non binary. From this point on Ms Taylor would wear female clothing to work.
Ms Taylor was then subjected to harassment and abuse over a number of years from colleagues, lack of support from managers, and difficulties when using toilet facilities. Ms Taylor resigned and brought forward claims of constructive dismissal, harassment, direct discrimination, and victimisation on the ground of gender reassignment.
Jaguar Land Rover had tried to argue that gender fluid/non binary did not satisfy the definition of gender reassignment as stated at s7(1) of the Equality Act 2010 which stipulates:
A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
This argument from Jaguar Land Rover was found by Employment Judge Hughes to be ‘totally without merit’. It was held to be clear that ‘gender is a spectrum’ and that Ms Taylor would indeed be protected under s7. As such, her claims were successful (with the exception of some claims that had unfortunately time barred, however it was commented that these were well founded).
Compensation and recommendations
The order of the tribunal involved aggravated damages for the ‘egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings’. An uplift of 20% was also applied to reflect Jagular Land Rover’s failure to comply with ACAS guidelines on Grievance’s and short term measures to assist Ms Taylor’s transition.
The tribunal also made a recommendation that positive steps should be taken by Jaguar Land Rover to educate and train staff in order that a similar incident does not arise in the future.
It has since been reported that an agreed award of £180,000 was reached between parties prior to any hearing on remedy.
This case provides a progression and clarification of the capabilities and protection afforded by the Equality Act 2010. Employers should be pro active in educating staff and providing training on equality and diversity in order to create an informed and supportive workplace.
It is also worth taking note that some of Ms Taylor’s claims had been time barred. Should you be subjected to discriminatory conduct in the workplace you should seek advice quickly as you will have 3 months less one day from the act of discrimination before the claim will be out of time.
There are specific exceptions to submitting a claim out with time, such as whether it is just and equitable to do so, or whether the discriminatory act is part of a series, in which case time bar will arise 3 months less one day from the last date in that series. You should always seek specialist advice regarding discrimination and time bar should you wish to make a claim.