Are gender-fluid and non-binary workers protected under the Equality Act 2010?

On 14 September 2020, in the case of Taylor v Jaguar Land Rover Ltd  (Case No. 1304471/2018), the Employment Tribunal held that the protected characteristic of gender reassignment under section 7 of the Equality Act 2010 (‘the Act’), extends to individuals who identify as gender fluid and non-binary. In this article, we discuss the case and what steps employers can take to ensure that they have an inclusive workplace.

Equality Act 2010

The Act provides protection for individuals from discrimination, harassment and victimisation. There are 9 protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Under section 7 of the Act, a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.  

Prior to the case of Taylor, it was unclear whether the Act provided protection for intersex and non-binary individuals.

The Case of Taylor v Jaguar Land Rover Ltd

Ms Taylor (‘Claimant’) worked for Jaguar Land Rover (‘the Company’) for over 20 years as an engineer. The Claimant identified as gender fluid/ non-binary in 2017. The Claimant began to dress in women’s clothing and was subjected to insults and abusive jokes while at work. Receiving no managerial support and having encountered difficulties in using the Company’s toilet facilities, the Claimant issued the following claims against the Company:

• Harassment,
• Direct discrimination,
• Victimisation on the grounds of gender reassignment,
• Constructive unfair dismissal.

The Employment Tribunal upheld all of the Claimant’s claims against the Company and confirmed that the Equality Act provides protection to those who identify as gender fluid and non-binary. The Claimant was awarded with aggravated damages. These damages are awarded in serious cases, where employers have acted in a ‘high-handed, malicious, insulting or oppressive manner’ (Broome v Cassell & Co Ltd [1972] AC 1027).

Read the full judgement of Taylor v Jaguar Land Rover Ltd here.  

Steps for Employers

It is important for employers to promote inclusivity and diversity in the workplace. Employers can do this by undertaking the following steps:

• Training on Equality and Diversity for all staff members,
• Reviewing  and updating Anti-Bullying and Equal Opportunities policies,
• Organise events and activities which encourage inclusivity, such as: LGBT History Month,
• Dress code – employers should check that their dress code does not discriminate against any of the protected characteristics,
• Complete an Equality Impact Assessment (EIA) – employers can undertake an EIA. This will allow them to ensure that their policies and procedures are fair and do not disadvantage individuals with a protected characteristic.

For further information, please see ACAS guidance on improving equality, diversity and inclusion in the workplace.

To discuss this article or any matters raised in it, contact Carol Shaw, Head of Spratt Endicott’s Employment Law practice at cshaw@se-solicitors.co.uk.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation. The information is accurate at date of publication, 26th of October 2020 .