Employment tribunal and court judgments | September 2020

R Taylor and Jaguar Land Rover (JLR)

The Employment Tribunal (ET) found in favour of the claimant in this gender reassignment discrimination case, the case being acknowledged by many as a landmark first due to it confirming that individuals identifying as gender fluid or non-binary are included under the protected characteristic of gender reassignment.

Of the limited facts which are currently available, it appears that the claimant had worked for JLR for many years, in an engineering capacity, initially presenting as male. In 2017, the claimant identified as gender fluid or non-binary, and dressed habitually in women's clothing. This led to derogatory comments from other employees of JLR, and the claimant also reported a lack of support from management. In a rather emphatic liability judgment, the ET decided unanimously that:

• The claimant had the protected characteristic of gender reassignment.
• Around 21 allegations of harassment because of gender reassignment were upheld.
• Certain allegations of direct discrimination because of gender re-assignment were upheld.
• An allegation of victimisation founded upon JLR's failure to allow the Claimant to retract a resignation was upheld.
• JLR's statutory defence to the allegations was "totally without merit".
• The claimant was constructively and unfairly dismissed.
• It was appropriate for aggravated damages to be awarded and for recommendations to be made.
• It was appropriate to make a 20% uplift due to a breach of the ACAS code in dealing with an earlier grievance.      

Cautious employers should take note and review their equality policies accordingly to ensure that it is clear that employees who identify as being gender fluid, non-binary or somewhere else along the spectrum, are protected in the same way as other transgender employees.

The judgment itself is available here, although the often more informative written reasons, are not yet available.

BC and Others v Police Service of Scotland

Whilst carrying out a criminal investigation into its own officers, the Police Service of Scotland reviewed the mobile phone messages of a police officer (a suspect) and discovered a group of officers involved in some unrelated but otherwise inappropriate WhatsApp messaging among themselves.

The messages were shared in group chats between some 15 or so officers, and showed evidence of homophobia, inappropriate comments on disability, racism, sexism and posts of images of crime scenes from ongoing investigations which were in breach of police procedure. The Police Service filed misconduct charges against the officers for breaching professional standards.

Some of those involved argued in the Court of Session that it was unlawful for the Police Service to use the evidence in non-criminal misconduct proceedings and that this was a breach of their Article 8 right to privacy.

The court rejected their arguments on the basis that police officers were held to specific standards under the Police Service of Scotland Regulations 2013 and specifically that they were required to abstain from activity likely to (or which could appear to) interfere with their carrying out of duties in an impartial manner.

The court also factored in that each member of the group was subject to the same standards, and on the facts there was no reasonable expectation of privacy.

Although this case is useful in showing that evidence in criminal investigations has successfully been used by an employer for misconduct proceeding against its own employees, the higher legal standards to which police officers are held are very likely to have had a bearing on the court's findings in this case. Other employers should therefore approach this case with an element of caution.

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