The case of de Souza E Souza v Primark is a good example of how not to deal with a transgender employee.
Ms de Souza identified as a woman and had lived as a woman for 16 years before she successfully applied for a job at the Oxford Street branch of Primark. On her first day of work, she presented her passport to evidence her right to work in the UK. This was in her birth name rather than the one she used, and Ms de Souza explained that she was transgender.
Primark advised Ms de Souza that the payroll would have to use her official name, but that she could use whatever name she wanted on her name badge. However, no system was put in place to ensure that Ms de Souza’s privacy was properly protected and her legal and preferred name was recorded as her birth name – Mr Alexander de Souza.
As a result, the daily rotas referred to Ms de Souza as Alexander and, following this, knowledge of her transgender status became known throughout the store and she became subject to gossip and speculation. Staff referred to her as Alexander, made jokes at her expense and insulted her. One of her colleagues said the she “could smell urine, like a men’s toilet” when standing next to her and another told an electrician that he could come into the ladies staff toilets as “there are no ladies in there,” knowing that Ms de Souza was there. She was also told that she had “evil inside her” and that she was “a joke.”
Ms de Souza resigned and brought claims of direct discrimination and harassment.
The tribunal agreed that Ms de Souza had been subjected to harassment related to gender reassignment and direct discrimination by failing to properly investigate her complaints and deal with them appropriately. It said it was “shocking” that Primark could not devise a way of keeping Ms de Souza’s birth name off the rota sheets and out of the knowledge of her supervisors and others.
It awarded her £47,433.03 in damages to compensate her for her past and future loss of earnings and loss of pension (£19,872.86), injury to her feelings (£25,000), and interest (£2,560.17).
It also recommended that Primark:
- Adopt a written policy regarding how to deal with new or existing staff who are transgender which should spell out how it will preserve their confidentiality
- Agree a plan with the individual concerned
- Train staff and managers about how to deal with transgender staff
- Include transgender discrimination in its equality and harassment policies.
Practical implications for employers
Employers must have a system in place to safeguard the confidentiality of anyone who identifies as transgender. That should include a form of written agreement that records what the parties have agreed, who can be told, and whether awareness training will be provided to the workforce.