The deadnaming of a transgender employee leads to a £25,000 award

An Employment Tribunal awarded a transgender woman £25,000 in a sex discrimination case after, among other things, her employer took two years to change her name on its systems.

To ‘deadname’ someone is to continue to call a transgender person by their birth name when they have changed their name as part of their gender transition.

The employee, Miss AB, notified her employer, Kingston Council, that she planned to transition, which she did in July 2020. What Miss AB did not anticipate was just how much of a long and painful struggle this would be.

Despite Miss AB’s efforts to change her name, including on her pension records, door pass, and staff directory following her transition, it took over two years before this was resolved. During this time, she received no support from her employer and believed that they had failed in their duty of care towards her.

Her work locker had a Post-it note attached to it with her previous name crossed out and a new name written instead.

The case also concerned various claims by Miss AB, including derogatory and unprofessional language used about her, which included accusing her of having a “hissing fit”.

Miss AB raised a complaint accusing managers of singling her out and implying that she was incompetent and not doing her job correctly, as well as discriminating against her. Her manager responded by escalating the matter to HR and demanding an apology, a move that the tribunal concluded showed the employer had a “dismissive” attitude towards her concerns.

Miss AB subsequently resigned and brought claims for constructive dismissal, gender reassignment, and sex discrimination, thought to be the UK’s first sex discrimination tribunal of its kind.

The judgment

The tribunal heard that this ordeal had a significant impact on her mental health, leading her to take sick leave for six months before making a tribunal claim.

Employment Judge Fiona McLaren ruled that ‘deadnaming’ Miss AB was ‘less favourable treatment’ which had contributed to her distress. Furthermore, the council’s policies and practices at the time were woefully inadequate and outdated and failed to provide guidance to staff undergoing transition and to team managers.

Miss AB was awarded £25,423 in compensation, including £21,000 for injury to feelings for the discrimination she suffered. When considering the appropriate injury to feelings award, the tribunal took account of the council’s lack of a formal apology, further adding to the distress Miss AB endured.

The council accepted that they did not handle Miss AB’s transition well and that policies were out of date at the time. The council told the tribunal that the learning development points taken from the case had been that equality training around trans people not only had to be provided but had to be repeated periodically, as well as policies updated. The council had also since put in place a specific trans equality policy developed in consultation with Miss AB.

What can employers take from this case?

Creating an inclusive and supportive workplace for all employees, regardless of their gender identity, is not only a legal requirement but morally significant. Transgender employees face unique and complex challenges in the workplace, and employers must provide a safe and welcoming place of work.

Employers and employees who transition should work closely together to quickly identify how name changes should be dealt with.

Equal opportunities, anti-bullying, and harassment policies should be reviewed regularly and kept up to date, as well as training provided and refreshed at regular intervals.

Employers who admit where they have got things wrong and seek to do better can go a long way in redressing an aggrieved employee, as well as avoiding potential claims of victimisation or aggravated damages.

Creating a workplace that is inclusive and supportive of transgender employees offers several benefits. This includes the ability to attract and retain diverse talent, offering improved employee morale and engagement, enhancing a company’s reputation as an inclusive employer, and compliance with legal obligations, reducing the risk of discrimination claims.

Understanding transgender terminology

Before considering the practical steps employers can take to support employees who are transitioning, it is essential to have a clear understanding of the key terminology and ensure staff are aware of it as well.

• Transgender: A person whose gender identity differs from the sex assigned at birth
• Gender Identity: A deeply held sense of being male, female, a blend of both, or neither
• Gender Expression: The way an individual presents their gender through appearance, behaviour, and clothing
• Transition: The process during which a transgender person may change aspects of their life to align with their gender identity

Legal obligations

Employers have a legal obligation to protect the rights of transgender employees. The Equality Act 2010 prohibits discrimination on the grounds of gender reassignment. Employers must ensure equal treatment in all aspects of the employment life cycle, including recruitment, promotion, and training.

Proactive steps employers can take

1. Education and training: Provide training for all employees and managers on transgender issues to promote understanding and sensitivity. Encourage open discussions to dispel misconceptions and stereotypes.
2. Developing inclusive policies: Create and communicate policies that explicitly support transgender employees, such as dress code, toilet facilities, and confidentiality.
3. Regularly review and update policies: Ensuring they remain up to date with legislation and best practice. They should address the rights of protected groups and trans people before, during, and after transitioning, including their right to be free from less favourable treatment on account of their transition (or intention to transition).
4. Respecting employees’ privacy: Ensure that transgender employees’ privacy is respected and their gender identity is treated confidentially.
5. Accommodating gender transition: Working with employees who are transitioning to create a transition plan that may include name and pronoun changes, toilet access, and dress code adjustments. Ensure the onus is not on the employee to chase up all the necessary changes to personal data stored by the employer. This includes ensuring IT and data storage systems are prepared for gender change.
6. Providing facilities: Offering facilities such as gender-neutral toilets and dress code options to make transgender employees feel more comfortable.
7. Anti-bullying measures: Implementing anti-bullying and harassment policies to protect transgender employees from discrimination and harassment.
8. Leading by example: Senior management should set the tone by demonstrating their commitment to a diverse and inclusive workplace.
9. Employee support groups: Encourage the formation of LGBTQ+ employee resource groups to provide additional support and raise awareness.

The CIPD has recently published a guide on supporting transgender and non-binary people at work. (https://www.cipd.org/uk/knowledge/guides/transgender-non-binary/)

Conclusion

Supporting transgender employees in the workplace is not only the right thing to do; it also has tangible benefits for employers. By understanding and respecting gender identity, creating inclusive policies, and fostering a culture of acceptance, employers can contribute to a more equitable, diverse, and inclusive workplace.

If you have any questions or would like support in managing transgender issues in the workplace, get in touch with the BLHR & Employment Team. 

We offer a free 15 minute chat with no obligation and will be happy to discuss how we can help, including under our fixed fee BLHR service which you can access here.