UK: ET ruling that gender-fluid and non-binary employees covered by gender reassignment law

The Equality Act 2010 prohibits discrimination against a person on the ground that they are undergoing or have undergone a process for gender reassignment.  The employment tribunal has ruled for the first time that this protection extends to individuals who describe themselves as non-binary or gender-fluid, as it is sufficient that they are at some point on the spectrum moving away from birth sex and there is no need for the journey of transitioning to end at the other biological sex or to have undergone any medical treatment.

Although this decision is only at first instance and therefore not binding, it is clearly prudent for employers to have policies that are consistent with this decision and for managers to be trained and supported in handling such issues appropriately and with sensitivity.

The employer in this case was ordered to pay aggravated damages due to the way in which the claimant had been treated by her employer (including being subjected to insults and abusive jokes, difficulties over toilet facilities and lack of management support). The tribunal was critical of the employer's failure to take action unless the claimant named those who were carrying out the harassment, given naming could easily have made things worse for the claimant.  Instead the employer could have issued a notice to all employees highlighting serious concern at the highest level that incidents had been reported of people being subjected to unacceptable harassment due to protected characteristics. It could also have considered designating some of the toilets gender-neutral. (Taylor v Jaguar Land Rover)