Retail giant, Primark, has been recommended by an Employment Tribunal to implement a written policy on dealing with transgender employees after they failed to deal with an employee’s grievances.  

As a result, they have to pay over £47,000 in compensation.

Facts of the case

The claimant worked as a retail assistant. On her passport, she was named as ‘Alexander’ but she had been dressing a woman for a number of years and went by the name ‘Alexandra’.

She explained she was transgender at interview. She was told she had to use her official name for pay purposes, but she could use whatever name she wished on her name badge.

During her induction training, she was given a name badge with the name ‘Alexander’. She spoke to HR, who did change the name on the badge, but they made no note or record to ensure that the employee’s name and transgender status would be handled sensitively in the future.

On the day-to-day personnel system, her name was changed from ‘Alexandra’ to ‘Alexander’ and her title was altered from ‘Miss’ to ‘Mr’. This was printed on daily core allocation sheets, which were used by supervisors to check a register at the beginning of shifts.

During her employment with Primark, she complained about a series of incidents including remarks such as ‘She is a joke! She became the joke of the shop’; ‘she’s got evil inside her’ and ‘man’s voice’. One of her supervisors called her Alexander in front of colleagues and customers and continued to do so even when corrected. While in the ladies staff toilet, a colleague said to a male electrician ‘You can go on. There are no ladies in there’ even though she knew that the claimant was there.

The employee felt her complaints were not taken seriously. At one point, she claimed that she was told to calm down and return to her till and not say anything else about the incident.

She was absent from work due to stress and told Primark she would not return to work unless they took action to address the bullying behaviour. She subsequently resigned and brought claims for direct discrimination and harassment under the Equality Act 2010 on the basis of gender reassignment.

Employment Tribunal’s decision

The Employment Tribunal held that she resigned because of the harassment she endured by a number of supervisors and colleagues and the failure by the employer to take any action. Both of which were sufficiently serious to constitute a fundamental breach of contract and entitled the employee to resign.

It was also found that the employer had violated the Acas Code. Primark had failed to notify the employee of the outcome of the grievances she had made in writing and also failed to inform her of her right to appeal. By not dealing with the grievance properly, the award for compensation included a 25% uplift.

The Employment Tribunal was highly critical of Primark’s failure to have a proper system which protects employees’ identity and maintains the confidentiality of transgender employees. The Tribunal concluded that only one or two people in HR and payroll should have been familiar with the employee’s transgender status.

They recommended that Primark adopt a written policy regarding transgender employees, which includes how to maintain confidentiality if so desired by the employee. They also suggested that Primark alter the materials used in training to cover transgender discrimination and to add to training materials the importance of managing grievances properly.

Lessons for all employers

This case is a useful reminder to:

• take all grievances seriously
• deal with any grievances that arise promptly
• ensure that line managers are adequately trained so they know how to deal with grievances and are aware of what amounts to breaching the Equality Act and what measures they can take to prevent discrimination and harassment occurring
• abide by the Acas Code
• make a decision about how best to deal with the grievance and inform the employee in writing of your decision
• allow an appeal if an employee does not feel that the issue or concern has been resolved
• have all the necessary policies and procedures and ensure they are followed carefully and correctly
• ensure there are good communication channels with employees. So, if an employee is undergoing gender reassignment, you can talk to them to understand how they would like to be addressed by their colleagues, when and to what extent colleagues can be told about a transition, if they need time off for gender reassignment, etc.

If you require guidance and support, contact your Employment Law Adviser at the earliest opportunity.