Business Law & Compliance
Don't fall foul of gender reassignment discrimination like Primark
6 min read
15 February 2018
Primark landed itself in hot water, after failing to protect one of its transgender employees from the abuse of colleagues. The company promptly found itself in court, slapped with a gender reassignment discrimination badge. There is, of course, a lesson to be learned.
December 2017 saw Primark defend itself at an employment tribunal. The court’s judgement has just been published, highlighting how claimant Alexandra de Souza, a transgender woman, was bullied while the company sat on its proverbial hands and did nothing.
The HR team, de Souza said, made no note of her wish to be called Alexandra instead of Alexander – the name stated on her passport. The latter name was filed across all documents, leaving Alexandra to explain on numerous occasions why she didn’t want to be known as such. This news spread – and staff which previously had no bone to pick with her got nasty.
One employee sprayed scent in her vicinity, saying: “I smell urine, like a men’s toilet.” de Souza claimed to have heard others discussing how her voice was deep like a man’s, and that she had even become “the joke of the shop.” Someone told an electrician they could go into the female staff toilets as there were no ladies present, knowing de Souza was using the facility, while another publicly “outed” her on the shop floor.
Judge Lewis found much fault in the way Primark handled the situation, suggesting the company had fallen foul of gender reassignment discrimination. “There are a number of reasons for our conclusion,” Lewis explained. “She complained a number of times about her treatment. She even persuaded the electrician to come with her to HR by way of corroboration.
“The respondents subjected the claimant to direct gender reassignment discrimination by failing to investigate the matter and deal with it appropriately, in particular by not giving the her the outcome of her grievance or advise her of the right of appeal. We find it shocking they could not devise a way of keeping her legal name off the core allocation sheets and out of the knowledge of her supervisors.”
de Souza was awarded £47,433.03 for emotional damage and loss of pay – and her story makes a powerful example of how a “limited” corporate culture has consequences. As Judge Lewis said: “This could have been prevented had there been proper support systems in place.”
Her case similarly highlights shocking findings unearthed by Stonewall. It found that half of employees hide the fact they are transgender due to a fear of gender reassignment discrimination. What’s more, 12 per cent have been physically attacked by colleagues.
Not only should it be considered right to prevent such incidents, but with the recent spotlight on diversity and inclusion, businesses really can’t afford to fall foul of discrimination. If you don’t want to fall foul of gender reassignment discrimination in particular, then the court’s recommended steps for Primark is a good place to start.
It suggested Primark adopt a written policy regarding how to deal with new or existing staff who are transgender or who wish to undergo gender reassignment. “The policy must encompass how to preserve confidentiality from the outset if that is desired and a plan with the individual concerned must be agreed upon,” it said.
“It should cover access to and confidentiality of sensitive data, entries on core allocation sheets, work badges and personnel documents such as probation forms. The respondents should consult a specialist organisation regarding the formulation of this policy and ensure a consistent grievance procedure is put in place.”
Staff complaints can make for awkward situations, but having grievance and disciplinary procedures in place will help you quickly establish the facts and take action.
According to Jennie Kermode, chair of Trans Media Watch, management displaying respect will make a large impact. Call them by the names they wish, and use the terms “he” or “she” accordingly, for example.
Kermode added: “Organisations should make sure transgender employees feel confident about raising any problems they may have and about making suggestions if they think there are ways things can be done better.
“When employees feel more secure about being themselves and are not worried by the need to keep secrets, their performance generally improves and workplace bullying decreases. Everybody in the organisation benefits.”
These are all factors that should rest within the company’s wider diversity policy. If you’ve made the policy visible to all members of staff and made it clear that all incidents will be taken seriously, then you’re already on your way to weeding out gender reassignment discrimination in the workplace.
“I would love to see the day when we don’t need a Black History Month because we are all recognised for our contribution,” says Brenda Gabriel, who has witnessed both racism and sexism in her career.