'Banter' and insults whether intentional or not are the bane of most HR professionals’ lives! We all want to work in a relaxed environment but not so relaxed that banter slides into insults and sensitivities are ignored. This case highlights two important issues on this subject; first, that some insults can be gendered and discriminatory and second that employers must take all reasonable steps if they are to avoid liability. 

Case highlights

• A tribunal has found that calling a transwoman colleague 'a wanker' was discrimination on the grounds of gender reassignment
• Taking all reasonable steps to avoid this happening is more than having a zero-tolerant approach to harassment

Case details

Miss Fischer, a transwoman, was an agency worker engaged as a bus driver by London United Busways Ltd. When her engagement was terminated after three months, she bought a claim for direct gender discrimination under the Equality Act 2010 (EqA 2010). One of the incidents which formed part of the claim is that a colleague called her a wanker (referred to by the tribunal as the 'insult incident'). She argued that this term of abuse was a gendered swear word. The insult was not only unpleasant it was also discriminatory. The bus company argued that the 'insult incident' had never happened and even if it had they had taken all reasonable steps to prevent it from happening. Whilst the tribunal agreed that the 'insult incident' had never happened, they concluded that had that not been the case then the insult was gender specific and so was sufficient to establish the grounds for a discrimination claim. In addition, the company’s steps to prevent such behaviour whilst a start, would not have been sufficient to defend a discrimination claim. 

Learning points

Key to this case is the guidance that the tribunal issued as to what all reasonable steps look like within any organisation. This guidance is useful to measure your defence to a discrimination claim but importantly it can also be used as a gauge as to how far you are progressing in becoming an organisation which is both diverse and inclusive;

• Ensuring all policies are up to date and reflect current law – sadly the employer in this case had policies dating back to 2007 so before the introduction of the EqA 2010!
• Focusing on inclusion as well as equality – ensuring staff are treated equally is key but equally key is that staff feel included
• Ensuring policies are available and understood - the policies shouldn’t be documents that are locked away and referred to from time to time, they should be accessible (the tribunal suggested attaching them to digital payslips) and reflected in the culture of an organisation
• Setting up representative bodies – the tribunal reiterated the importance of representative groups such as LGBTQ+ groups within the workplace
• Training managers – managers need to be trained so they are aware of inclusive terminology and can influence staff.  The tribunal judge was shocked at the lack of awareness and language displayed by managers in the company
• Piecemeal measures not sufficient – a note made on the file of the person who had allegedly used the insult against Miss Fischer and a poster for Pride was not sufficient to address the wider issue of inclusion. Whilst the poster was a start and a step it was not enough

If you feel your policies need attention or more training is required please do contact any member of our team. In addition, do attend our annual Employment Law Update on 17 October 2023 where the focus in the first session will be on ED&I and how organisations build a culture where rights are recognised and respect given. Click here to register for the event.