Discrimination: Gender Reassignment

• Published date: 10 October 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals
• Law Firm: L&E Global
• Author: Ms Frances Ross (Clyde & Co) and Corinna Harris (Clyde & Co)

Ms. Fischer, a transwoman, was an agency worker engaged as a bus driver by LUB. When her engagement was terminated after three months, she brought a claim of direct gender reassignment discrimination. The alleged incidents of discrimination included that, while at the depot, a colleague had called her a "w****r." She alleged that this was a less favourable treatment because of her gender reassignment and that LUB was vicariously liable for it as it occurred during the course of the colleague's employment.

By a majority, the tribunal dismissed Ms. Fischer's discrimination claim. That said, the tribunal noted that it did not consider the insult "w****r" to be a gender-neutral term and accepted that if this was said to Ms. Fischer, it was insufficient in principle to establish a case of gender reassignment discrimination.

Although Ms. Fischer's discrimination claim failed, the tribunal nevertheless considered whether LUB could rely on the "reasonable steps" defence under the Equality Act and noted a number of additional steps that could have been taken by LUB, including:

• Making clear that its equal opportunities policy applies to agency workers.
• Ensuring its equal opportunities policies complied with the EHRC Employment Statutory Code of Practice which included giving examples of what is and isn't appropriate behaviour, identifying who is responsible for the policy,...