Gender Neutral Insults – Taking All Reasonable Steps

In considering whether a transgender employee had been subject to discrimination, the Employment Tribunal has stated that the term ‘w****r’ is not a gender-neutral term and that using such a term towards a transgender employee will likely be discriminatory if contrary to their affirmed gender. Whilst it may be discouraged, it’s inevitable that the casual use of such terms is likely to occur at times in the workplace, and where there are associated discrimination issues this case is a reminder that employers must ensure that they have taken all reasonable steps to prevent such discrimination from taking place, to avoid liability for the acts of their employees.

The Law

Gender reassignment is a protected characteristic under the Equality Act 2010 (‘the Act’). This allows employees to bring a discrimination claim against their employer if treated less favourably than other employees who do not have that protected characteristic.

The Act states that anything done by an employee in the course of their employment ‘must be treated as also done by the employer.’ However, in such a situation, it is a defence for the employer to show that it took all reasonable steps to prevent the employee from doing either what they have done or anything of that description. This is commonly referred to as the ‘all reasonable steps’ defence.

The Case

Amanda Fischer, an agency bus driver, was employed by London United Busways Limited (‘Busways’) for around two months before her eventual dismissal after several incidents in which Miss Fischer’s poor performance caused her employer to incur costs. Following her dismissal, Miss Fischer alleged that during her employment, she had been treated less favourably than other employees on the grounds of gender reassignment.

One particular incident which Miss Fischer claimed showed less favourable treatment towards her was when she alleged that another bus driver had called her a ‘w****r.’ She argued that, as this was done in the course of the other bus driver’s employment, Busways was liable for the act.

The Tribunal held that this incident, along with others complained of, did not take place, therefore, Busways could not be liable. However, in reaching this decision, the Tribunal stated that it did not ‘consider the insult ‘w****r’ to be a gender-neutral term’ as it is applied to men and there are ‘equivalent but different’ insults which are used towards women. This means that if the incident had been found to have taken place, Busways would likely have been liable for gender reassignment discrimination unless they had a valid defence.

All Reasonable Steps

Despite finding that the incident did not take place, and therefore that Miss Fischer’s claim failed, the Tribunal nonetheless considered the all reasonable steps defence that Busways had sought to rely on.

Busways pointed to the existence of its Equal Opportunities and Harassment policies which emphasised a ‘zero tolerance’ approach to enforcement. Further, these policies were sent to agencies supplying workers prior to their engagement and the policies also formed part of Busways’ induction process. The Tribunal, however, pointed out that their Equal Opportunities policy appeared to date from 2007 and did not even refer to the Act despite it being in force for over a decade. It also pointed out that displaying the relevant policies in common areas in the depot was insufficient as the bus drivers spent little time there. For such situations, the Tribunal suggested attaching such information to digital pay slips or leaving physical copies in drivers’ cabs.

The Tribunal also referenced ‘growing societal recognition that focusing on “equality” alone is insufficient.’ Indeed, as one of Miss Fischer’s complaints was that she did not feel wanted in the workplace, the Tribunal stressed the importance of policies setting out the expectation that employees from minority backgrounds be celebrated for their ‘skill, experiences, characteristics and perspectives.’ Considering this, the Tribunal was surprised that an employer of Busways’ size did not have employee representatives from its minority groups.

The Tribunal found that given the size of Busways’ organisation, updating its policies, training staff to avoid alienating minorities in the workplace and providing support for minority groups were not onerous tasks. It would, therefore, have been reasonable of them to have taken such steps and doing so would make a marked difference to the experience of the workforce. Ultimately, this meant that had the incident been found to have occurred, Busways would not have been able to successfully rely on the all reasonable steps defence.

What This Means for Employers

Try as they may, employers cannot stop employees using offensive language at work and, indeed, such language is now more common in the workplace (for further information on this, please see our article on Dadhania v SAP (UK) Ltd here). For this reason, it is important for employers to ensure that they have taken all reasonable steps to prevent the line being crossed into discrimination, in order to avoid liability. What the Tribunal is likely to consider reasonable will be different in regard to every employer and the Herrington Carmichael employment team can advise on the specific steps you may require to avoid liability.

Further, this case highlights the importance of keeping policies relevant to discrimination up to date to ensure that they reflect the current law, and to ensure regular updates and training to key employees and managers takes place.

For further information on gender reassignment discrimination or to discuss the issues raised, the reasonable steps defence, policies or training, please contact us to speak to a member of our Employment Team.