Miss A de Souza E Souza v Primark Stores Ltd (Employment Tribunal)
Employers who fail to preserve the confidentiality of transgender employees may be held vicariously liable for gender reassignment discrimination.
A transgender woman applied for a job as a retail assistant with the Defendant. She referred to herself as her female name on her application form and was informed she would be able to use this name on her uniform badge, but that her official (male) name from her passport would be required for payroll purposes. When she began work, the employee was given a name badge with her male name on it and the daily rota also referred to her by her birth name. As a result of the employer's failure to protect the employee's privacy, other staff ridiculed and bullied her for her transgender status (saying, amongst other things, that she had "evil inside her" and consistently referring to her as a man). She subsequently raised grievances but did not receive outcomes from her employer, and she resigned, treating herself as constructively dismissed.
The Employment Tribunal agreed that the employee was constructively dismissed and that the employer was vicariously liable for direct gender reassignment discrimination for failing to deal with the matter appropriately. The employee was awarded £25,000 in respect of injury to feelings, in addition to compensation for loss of earnings and the Employment Tribunal made various recommendations for managing the employment of transgender staff in future.
Although this is only a first-instance decision, it provides clear guidance on what is expected from employers of transgender employees. As a minimum, policies should be established for preserving the privacy of transgender employees and in this case the Tribunal even suggested that specialists be instructed to help formulate such a policy.