The first tribunal case concerning protection against discrimination for nonbinary employees to be decided after the For Women Scotland (FWS) case has been published - Lockwood v Cheshire and Wirral NHS Foundation Trust and Others.

Liverpool tribunal rules that a non-binary employee was not protected by the Equality Act 2010 as they did not have the protected characteristic of gender reassignment. 

Case facts  

The claimant was employed by the NHS Trust; they had applied for their role in the name of Heather Lockwood and commenced work in November 2021. Their application form noted they were nonbinary.  

In December 2022, with the support of their manager, an email was circulated to the relevant team informing them that the claimant would now be known as Haech Lockwood and was trans/gender fluid and did not identify as either male or female.  The email noted that the claimant’s appropriate pronouns were they/them and that using their deadname (Heather Lockwood) caused gender dysmorphia for the claimant. 

However, there were delays and problems updating the claimant’s details; their updated profile was delayed, mail merge systems continued to use their deadname as did a revised contract of employment.  

In addition, there was a series of incidents, as documented by the claimant, when they were misgendered by colleagues on several occasions and then allocated a patient who had specifically requested a female clinician. 

The claimant bought a claim for harassment under the Equality Act 2010 on the grounds of the protected characteristic of gender reassignment.  The questions for the tribunal were two-fold.

• Does the definition of gender reassignment under the EqA extend to non-binary employees?
• Did the incidences of misgendering and deadnaming meet the definition of harassment under the EqA?

Gender reassignment

S7 of the EqA provides the following definition of gender reassignment.

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

The Liverpool tribunal noted that reassigning is moving from one thing to another and applying the FWS case, “sex” is a binary concept, male and female.  So s7 protected individuals who are moving from one sex to another – male to female or vice versa.  It can protect them at any point on that journey, but the direction of travel must be towards reassigning their birth sex. 

In this case, the claimant had changed their name by deed poll and had requested gender neutral pronouns but had no intention of reassigning their sex to male.  These changes were not part of their journey to reassignment but were indications of them moving away from their birth sex.   This was not, the tribunal concluded, gender reassignment for the purposes of protection under the EqA. 

What about the Jaguar Land Rover (JLR) case?

This was a key case back in 2018 where an employee who was transitioning and identified as gender fluid was protected under the EqA.  The key difference in the JLR case is that the tribunal concluded that the claimant was on the “transition journey” as intended by Parliament when the definition was drafted.  

At the point the claimant bought the case, they identified as “gender fluid” at that point in their journey.  The claimant in this more recent case had no intention of reassigning their sex; their journey from female to non-binary was complete.  

The Liverpool tribunal noted that the only documentation which suggested that they would have been protected by the EqA was the EHRC guidance. This guidance, now outdated following the FWS case and in the process of being updated, noted that moving away from birth sex was sufficient to meet the requirement of gender reassignment. 

Harassment 

Given the ruling that the claimant was not protected from harassment under the EqA on the grounds of gender reassignment, this precluded their harassment claim from succeeding.  However, both parties had asked that the tribunal rule as to whether harassment, as defined by the EqA had taken place. *

The judge ruled that the misgendering and deadnaming, whilst not deliberate, were because of the claimant’s nonbinary status and were unwanted.  However, the judgment went on to note that these incidents had not violated the claimant’s dignity – hurting their feelings wasn’t sufficient – and neither had it been proven that the claimant felt unsafe.  

The judge ruled that “all staff involved demonstrated a real intention to do their best to ensure they get it right going forward and propose and, in most cases, put in place positive steps to achieve this. “ As such, all the claims for harassment failed. 

Takeaway points

Usually, when we report cases, our takeaway points highlight what the respondent employer did wrong to illustrate how to do better! The reverse is true in this case. 

Whilst the ICT issues should have been dealt with quicker, I imagine delays are hard to avoid in NHS trusts such as this one with over 4,500 employees.  The tribunal commended the Trust for how they treated the claimant and so I want to take their actions as our takeaway points from this case.  

You may be thinking, why bother with these steps if the employee is not protected under the EqA? While that might be the case, I would warn against that attitude; 

• First, an employee may not always be as clear as this one was as to whether they are intending to transition to the opposite sex and so it may not be clear whether they are protected or not; 

• Second, creating a workplace where everyone feels safe and able to thrive means taking the steps below not just to avoid litigation but to create that type of working environment and the benefits it reaps; 

• And third, these steps should be part of any organisation’s process and practices when dealing with potential discrimination (or other delicate issues) as they will form the basis of an “all reasonable steps defence” in any form of discrimination claim. 

Managers should listen with respect to any staff who talks to them about any change in identity linked to gender/sex. This could be related to transitioning to the opposite sex or could be a desire to identify as non-binary or gender fluid. 

Managers should discuss with that employee what changes they would like to be made as a result, how that will happen and an anticipated time frame. Where there may be problems with the changes, these should be explained sensitively and a solution discussed. 

Those changes should then be made as quickly as possible and communicated to the relevant teams/people with as much information as the claimant wishes to provide. 

If situations of misgendering or deadnaming or other upsetting scenarios for the employee arise, managers/HR teams should investigate and be willing to issue sincere apologies where these incidents are found to have happened. 

The employee should also be updated on any steps that have been taken to prevent it from happening in the future. 

Managers and HR teams must have the relevant training in ED&I issues and HR should consider whether additional training on trans employees is necessary. 

Those eagle-eyed amongst you will note that the issue of bathrooms was not raised in this case.  We would refer you back to our original update on the FWS case here for more details on this – we are still awaiting the new EHRC guidance on this matter and will write an update when it is published. 

These issues are complex and circumstances-specific.  If you have any queries or questions on particular cases, please do contact a member of our team. 

*Harassment under the EqA is defined as unwanted conduct that has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.