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We are not lawyers at Inclusive Employers, but we are experienced practitioners and understand what employers need to know, so with each piece of discrimination case law that we share the legal judgement is set into an employment context – what you need to know and what you should do. This case highlights the importance of having policies and training in place to support transgender employees or individuals who are going through gender reassignment.
The Case: de Souza v Primark (2018)
- Protected Characteristic involved: Gender reassignment
- Legal Principle involved: Direct discrimination
- UK or EU Judgement? UK – Employment Tribunal
Why is this case important?
The respondents showed a complete lack of understanding from the beginning as to what was required. The result was a successful claim at the Employment Tribunal and a large compensation payment to Miss de Souza.
What’s the case about?
The case involved a shop assistant at a Primark store, Miss de Souza. When she applied for the role, Miss de Souza informed Primark that she was transgender and would prefer to be known as Alexandra, rather than by her birth name, Alexander.
Primark agreed that she could choose the name she would like on her name badge, but said she would have to use her official name for pay. However, in error both Miss de Souza’s “legal name” and “preferred name” were recorded as Alexander on Primark’s system.
The system was used to generate core allocation sheets (which were given to supervisors to call a register at the start of shifts) and the name Alexander appeared as Miss de Souza’s name on those sheets.
There were various incidents during Miss de Souza’s employment, which led to her resigning and bringing claims against Primark for direct discrimination and harassment in relation to gender reassignment.
Examples include that she was repeatedly called Alexander by her supervisor, and was subject to name calling and comments from colleagues. On one occasion a colleague sprayed men’s perfume over her till and she was subjected to comments that she had a “man’s voice” and a “deep voice”.
Miss de Souza made a formal complaint and a department manager (Mr Wyatt) investigated. Mr Wyatt spoke to Miss de Souza and to other witnesses, but the Tribunal found that his investigation was inadequate. Mr Wyatt decided that no further action would be taken, but this was not communicated to Miss de Souza.
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What do I need to know?
The Employment Tribunal were really clear about the importance of a written policy regarding how to deal with staff who are transgender or who wish to undergo gender reassignment:
- inserting a reference to the existence of a policy of confidentiality in regard to transgender new starters into any materials used in training managers to recruit staff;
- materials used for equality training to include references to transgender discrimination and the existence of the specific transgender policy; and,
- transgender discrimination and harassment is referred to in all their equality and harassment policies.
Failure to investigate and handle complaints properly can amount to discrimination, so have procedures in place to deal with grievances and train those who handle complaints. Employers can also be held vicariously liable for discriminatory acts committed by their employees in the course of their employment.
However, there is a statutory defence available to an employer if it can show that it had taken all reasonable steps to prevent the discrimination. Therefore, making sure you have robust and up to date policies in place, and that staff are adequately trained on them, is essential.
Next steps to becoming inclusion confident
Are your policies up to date? A policy review doesn’t need to be a painful process. With our support and guidance it can be a positive step to refresh and implement best practice and legislation. Talk to us about policy review.