It’s a commonly touted line that ‘You can’t say anything these days’ without fear of offending someone. The simple response, of course, is the equally common line that if you have nothing nice to say, don’t say anything at all.
This would certainly have been good advice in the case of Fischer v London United Busways Limited where the employment tribunal chose to tackle the tricky issue of whether language can carry gender connotations.
As if that wasn’t enough, the Tribunal also had to deal with the matter of the ‘all reasonable steps’ defence which, while rarely, can be an absolute defence for an employer.
Background
The Claimant, Amanda Fisher, was a trans woman and therefore had the protected characteristic of gender reassignment.
She brought a discrimination claim after allegedly being called a “w***er” at work in 2021 asserting that the term was clearly gendered towards men and that, in doing so, the perpetrator had been deliberately applying a swear word to misgender her.
As it happens, the Tribunal found that the case failed on a factual basis as the Claimant could not prove the event had actually taken place. However, it then concerned itself with addressing in detail the discrimination issues raised.
Gendered Language
The Tribunal found that the word ‘w***er’ was not a gender-neutral term and that it was applied almost universally to men. The judgment records that the panel believed there to be similar words used about women although it does record what those words are.
They went on to say that if the term was directed at a transwoman, it could establish a prime facie case for discrimination on the basis of gender reassignment.
This is not a perfect or thorough analysis by any means and unhelpfully does not make any reference as to how that claim might be detailed: is it because the Claimant is no longer a man or is it that the word was used intentionally to highlight the fact?
This will rely on a further case to actually establish those arguments.
This is a first instance case so does not set any kind of precedent but the inference is certainly there that anyone with the protected characteristic of gender reassignment could bring a similar argument if faced with a word that could be considered gendered in this way.
Reasonable Steps Defence
The case did also highlight some useful points on the reasonable steps defence and the difficulties in raising it.
Although arguably unnecessary because the claim had failed on its facts, the Tribunal did concern itself with addressing the points raised by the Respondent and noted that the law requires the Respondent to show it took all reasonable steps, not just some. This is likely to include:
- Up to date policies
- Which do not focus solely on “equality” but also inclusion and equity
- Which apply clearly to all relevant individuals
- Who are expected to undertake regular and relevant training on equality, diversity and inclusion
- That larger employers not only have a diverse workforce but have relevant representation from minority groups
An Employment Solicitor’s View
Chris Dobbs, Employment Associate, said: “Although unsuccessful on its facts, this case does show how a Claimant could make the argument that gendered language amounts to discrimination on the basis of sex or gender reassignment.
My introduction to the case was a little tongue-in-cheek but there is some truth in the fact that things one person may find innocuous “banter” can give rise to a discrimination claim.
If the Claimant can make that prima facie case, it’s down to the employer to prove that the action was not discriminatory or that they took all reasonable steps to prevent it happening.”
Employment & HR Solicitors
Our bright Employment Team has a vast experience in advising employers in cases of all kinds.
We’d be happy to provide tailored advice and assist you in mitigating, preventing and fighting claims, such as unfair dismissal.
You can call us on 01202 499255, or fill out the form at the top of this page, for a free initial appointment.
Tailored courses for Employment & HR Professionals
We also offer a range of tailored Employment Training Courses for new and experienced employers and HR professionals alike, which may be useful to you.
To keep up to date with employment news, tribunal and updates; you can register for our free newsletter here.
Comments