Gender reassignment discrimination: Tribunal recommends that employer adopt transgender policy

XpertHR, 2 March 2018

In de Souza E Souza v Primark Stores Ltd, the employment tribunal awarded £47,433 to a transgender employee who suffered harassment and recommended that the employer adopt a written policy on how to deal with new and existing staff who are transgender or who wish to undergo gender reassignment.

Practical tips

A transgender employee's gender history should be kept confidential and disseminated only to individuals to whom the transgender employee wishes to tell and who need to know, such as the employee's immediate line manager and HR.

Employers can adopt a policy setting out how they supports transgenderemployees and prevents discrimination against transgender people in the workplace.

Ms de Souza is a transgender woman who had been dressing as a woman on a permanent basis for approximately 16 years. Her birth name, recorded on her passport and birth certificate, is Alexander, but she went by the name Alexandra.
Ms de Souza applied for a job as a retail assistant at Primark. Her application form gave her first name as Alexandra. At the interview, she explained that she is transgender and was told that, while Primark had to use her official name for pay purposes, she could use her preferred name on her badge.
The recruiting manager did not make any note of Ms de Souza's circumstances and name preference.

Ms de Souza started working for Primark in one of its London stores in September 2016. During her induction training, she used the name Alexandra, but she was given the name badge "Alexander". Ms de Souza explained to the HR supervisor that she is transgender and that her name badge should state "Alexandra". She was given a new name badge. However, nothing was done to ensure that the issue of Ms de Souza's transgender status and name should be sensitively handled in the future. When Ms de Souza's details were transferred from the recruitment system to the day-to-day personnel system, both her legal and preferred names were logged as Alexander. Daily work allocation sheets were printed with employees' legal names (Alexander in this case), and were used for checking purposes/to call a register at the start of shifts. A number of colleagues and supervisors became aware of Ms de Souza's transgender status and she alleged that she was treated badly because of this. She complained a number of times during her employment about her treatment and ultimately resigned in February 2017 because of ongoing harassment and Primark's alleged failure to do anything about it.

Ms de Souza complained to the employment tribunal of harassment related to gender reassignment, direct gender reassignment discrimination and constructive dismissal. The employment tribunal noted at the outset of its decision that colleagues sometimes discussed Ms de Souza in an "explicit manner". The tribunal found that Ms de Souza was subjected to harassment when:

  • a supervisor asked her "What's your name again?", called her "Alexander" in front of customers and a colleague and, when Ms de Souza challenged this, laughed at her and referred to her as "Alexander/Alexandra";
  • the same supervisor continued to refer to her as Alexander, knowing that she wished to be called Alexandra;
  • a fellow employee sprayed scent near her and said "I can smell urine, like a men's toilet" and loudly discussed with another colleague her "man's voice" and "deep voice";
  • another employee told an electrician that he could go into the ladies' staff toilets as "there are no ladies in there", when she knew Ms de Souza to be in there;
  • a staff member stated that she would pray for Ms de Souza as "She's got evil inside her";
  • another employee stated in front of customers "She is evil";
  • a further staff member stated to another supervisor "She is a joke! She became the joke of the shop"; and
  • two employees laughed at Ms de Souza as she sat outside HR waiting for a meeting.

In addition, the employment tribunal found that the employer subjected Ms de Souza to direct gender reassignment discrimination by failing properly to investigate the matter and deal with it appropriately. In particular, the tribunal noted the company's failure to provide Ms de Souza with the outcome of her grievances or to advise her of her right of appeal. The tribunal also found that Ms de Souza was constructively dismissed. It concluded that she had resigned because:
he was subjected to remarks and harassment by a number of colleagues because of her transgender status;

  • nothing was done about it;
  • she was not provided with the outcome of her grievances;
  • and as a result of the employer's inaction, she continued to be subjected to discriminatory actions by other employees.
  • The employment tribunal awarded Ms de Souza £47,433, which incorporated a sum of £25,000 for injury to feelings.
  • The tribunal also made recommendations that Primark:
  • adopt a written policy on how to deal with new and existing staff who are transgender/wish to undergo gender reassignment, stating that this policy must encompass how to preserve confidentiality from the outset, if desired, and agreeing a plan with the individual;
  • insert a reference to the existence of a policy of confidentiality with regard to transgender new starters into materials used for training managers to recruit staff;
  • amend equality training materials to include, if not already there, references to transgender discrimination and to the existence of a specific transgender policy;
  • ensure any equality and harassment policies refer to transgender discrimination and harassment; and
  • add into management training materials the importance of a consistent application of the grievance policy, the importance of providing a grievance outcome within a reasonable time and the right of appeal.