“Deadnaming” an employee amounted to direct discrimination

A case from the Employment Tribunal provides helpful guidance to employers about their obligations to trans employees who are transitioning to reflect their gender identity.

Background

The Claimant is a trans woman and gave her employer eight months’ notice that she would be transitioning. This transition took effect in July 2020. When she transitioned, the Claimant went by a female name and pronouns. The Claimant alleged that her employer failed to support her during her transition and post-transition. This lack of support was said to include various allegations of “deadnaming” (referring to an individual by their pre-transition name) in that her name had not been updated on the employer’s systems including its email and pension records. In addition, her access pass was in her previous name and a post-it note was put on her locker with her previous name crossed out and her adopted name written alongside it. The Claimant alleged she could not contact a colleague to rectify this without outing herself as trans to a committee of people.  Issues regarding her name persisted for up to 2 years post-transition.

In the Employment Tribunal, the Claimant alleged that this treatment amounted to direct discrimination on the grounds of gender reassignment.

The law

Direct discrimination is defined as being when “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others” (Section 13, Equality Act 2010).

In respect of the definition of “gender reassignment” as a protected characteristic under equality law, an individual is protected if they are “proposing to undergo, is undergoing or has undergone a process […] for the purpose of reassigning the person’s sex […]“. Such a proposal does not need to be irreversible and medical intervention is not necessary for protection.

Decision

The Employment Tribunal upheld the claims that the instances of deadnaming amounted to less favourable treatment of the Claimant due to her protected characteristic of gender reassignment. This was in addition to other instances of direct discrimination owing to her transition including removing work from her and an incident where a senior manager demanded an apology from the Claimant due to allegations she had made concerning her treatment.

The Tribunal awarded the Claimant £21,000 as compensation for injury to feelings in addition to £4,423 in interest.

Comment

The case is a useful reminder to employers to have policies in place to assist transitioning employees during a period which can be difficult for them and to help guide the behaviour of colleagues towards those individuals. In particular, the need for employers to have systems in place that allow an individual’s name and pronouns to be updated in a manner which is easy for the employee and discreet was highlighted in this case. Employers should be prepared to deal with a transitioning employee proactively and discuss changes that may be required and make these wherever possible rather than placing the onus on the employee.

The Tribunal did conclude in this case that the employer’s policies were out of date and that there was an absence of training for all staff which would have been helpful for both transitioning employees and team managers alike. This emphasises the importance of taking a proactive approach in respect of raising awareness of protected characteristics and appropriate behaviour amongst the workforce, including having effective and up-to-date policies and procedures in place and providing regular training so that all staff can be treated with dignity and so that management have a clear plan of action to facilitate this.

Case Reference:     Miss AB v Royal Borough of Kingston upon Thames ET/2303616/2021