The recent case of de Souza v Primark (2018) involved one of the highest reported awards for gender reassignment discrimination. We take a look at the Tribunal’s findings and the lessons employers can learn from Primark’s mistakes.
The case involved a shop assistant at a Primark store, Miss de Souza. When she applied for the role, Miss de Souza informed Primark that she was transgender and would prefer to be known as Alexandra, rather than by her birth name, Alexander. Primark agreed that she could choose the name she would like on her name badge, but said she would have to use her official name for pay.
However, in error both Miss de Souza’s “legal name” and “preferred name” were recorded as Alexander on Primark’s system. The system was used to generate core allocation sheets (which were given to supervisors to call a register at the start of shifts) and the name Alexander appeared as Miss de Souza’s name on those sheets.
There were various incidents during Miss de Souza’s employment, which led to her resigning and bringing claims against Primark for direct discrimination and harassment in relation to gender reassignment. For more information about gender reassignment, see our previous article here.
Miss de Souza gave evidence to the Tribunal that she was repeatedly called Alexander by her supervisor, and was subject to name calling and comments from colleagues. On one occasion a colleague sprayed men’s perfume over her till and she was subjected to comments that she had a “man’s voice” and a “deep voice”.
Miss de Souza made a formal complaint and a department manager (Mr Wyatt) investigated. Mr Wyatt spoke to Miss de Souza and to other witnesses, but the Tribunal found that his investigation was inadequate. Mr Wyatt decided that no further action would be taken, but this was not communicated to Miss de Souza.
There was another incident in which a colleague told an electrician who needed access to the female toilets that there were no ladies in there, even though Miss de Souza was in there. Again, Mr Wyatt investigated, and again his investigation was inadequate and concluded no further action would be taken. Miss de Souza was not informed of the outcome and was not given the opportunity to appeal (contrary to Primark’s grievance procedure and the ACAS Code of Practice on Disciplinary and Grievance Procedures).
Miss de Souza took time off work due to stress and when she returned she continued to be subjected to comments by colleagues. A few weeks later she resigned because of the harassment and Primark’s failure to do anything about it.
The Tribunal found that the actions of Miss de Souza’s supervisor, the perfume incident, comments about her having a “man’s voice”, and the toilet incident each amounted to harassment. The Tribunal held that Primark’s failure to investigate and handle the matter properly was direct gender reassignment discrimination. Although the Tribunal found that the new starter material and name badge being issued in the wrong name was not direct discrimination, it was critical of Primark’s failure to have a safe system in place to protect Miss de Souza’s identity, and commented:
“We find it shocking that the respondents could not devise a way of keeping the claimant’s legal name off the core allocation sheets and out of the knowledge of her supervisors. The respondents ought to have been able to devise a system whereby only one or two people in HR and payroll were aware of the claimant’s transgender status… The respondents showed a complete lack of understanding from the beginning as to what was required”.
Miss de Souza was awarded £47,433.03, which included loss of earnings, injury to feelings, and a 25% uplift for Primark’s failure to follow the ACAS Code of Practice.
In addition to awarding compensation, The Tribunal made recommendations for Primark, including that they should:
- adopt a written policy regarding how to deal with staff who are transgender or who wish to undergo gender reassignment;
- insert a reference to the existence of a policy of confidentiality in regard to transgender new starters into any materials used in training managers to recruit staff;
- amend materials used for equality training to include references to transgender discrimination and the existence of the specific transgender policy; and
- ensure that transgender discrimination and harassment is referred to in all their equality and harassment policies.
As this case shows, an employer’s failure to investigate and handle complaints properly can amount to discrimination, therefore for employers it is important to make sure that you have procedures in place to deal with grievances and that those who handle complaints are aware of the procedures.
Employers can also be held vicariously liable for discriminatory acts committed by their employees in the course of their employment, as Primark were in this case. However, there is a statutory defence available to an employer if it can show that it had taken all reasonable steps to prevent the discrimination. Therefore, making sure you have robust and up to date equal opportunities policies in place, and that staff are adequately trained on them, could make all the difference. We have experience of running equal opportunities training for employers – contact us if you would like to know more about what we can offer.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).