An Employment Tribunal decision has confirmed that gender-fluid and non-binary workers are protected by anti-discrimination laws, in a case that saw the employer ordered to pay £180,000.
The employee had worked for the company for nearly 20 years when they began to openly identify as gender fluid, and wear clothes that differed from their perceived gender. This led to offensive jokes and verbal insults from other staff and problems when trying to use the toilet facilities. The employee felt that management had offered little support throughout their experience. When the employee resigned but then tried to retract their resignation, the company refused.
The employee successfully claimed at the tribunal for harassment, victimisation, discrimination and constructive unfair dismissal.
The Equality Act 2010 protects people from being discriminated against because of certain protected characteristics. One of these is gender reassignment. The employer here argued that the employee wasn't protected because the definition of gender reassignment doesn't cover gender-fluid and non-binary people – just transgender people who identify as either male or female.
The tribunal rejected the employer's stance as 'totally without merit', confirming that the employee had the protected characteristic of gender reassignment. They also ordered the compensation to be raised by 20% because the employer had failed to follow the Acas Code of Practice when the employee had raised the original grievance.
What this means for you
This case confirms that, in equality law, gender reassignment doesn't just refer to those who undergo a medical transition. The ruling means you could be liable if you treat non-binary or gender-fluid staff less favourably than others.
This, broadly, can include individuals who identify with a gender that is in-between or beyond the binary categories of 'man' and 'woman'; those who fluctuate between identifying as one or the other; and those who identify with neither.
Lack of understanding is often cited as a key problem for employers, so something as basic as learning about the terminology involved can be a useful starting point. Training at all levels of your business is also a good idea.
Beyond that, some simple first steps include checking whether you have any business policies or documents that are unnecessarily gender prescriptive – for example, differing dress codes for 'male' and 'female' staff might not be appropriate. If you make staff fill in forms, make sure there's space for people to choose something other than the traditional male/female and Mr/Miss/Mrs options. You could also consider whether gender-neutral toilet facilities might be needed.
Note, though, that this judgement doesn't have to be followed by other tribunals and they could reach a different decision based on similar facts.