Latest in Employment Law>Case Law>AB v Royal Borough of Kingston upon Thames [2023]
AB v Royal Borough of Kingston upon Thames [2023]
Published on: 24/10/2023
Issues Covered: Discrimination
Article Authors The main content of this article was provided by the following authors.
Jason Elliott BL Lecturer in Law and Barrister
Jason Elliott BL Lecturer in Law and Barrister

Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Background

Background: 

The claimant gave eight months’ notice to her employer that she was intending to transitionThis transition came into effect from 1st July 2020She complained that there was no support from her employer who had failed in its duty of care towards herShe argued that there had been a failure to follow internal policies such as the Equality and Diversity Policy Statement and the Dignity at Work Policy.   It was noted by the Tribunal that these documents were of some vintage and they did not make reference to the Equality Act 2010. For example, references to gender reassignment were characterised as sexual harassment rather than being in line with it as a separate protected characteristicBetween this case being issued and the decision it was noted that the respondent had developed a specific trans equality policy which had been developed in consultation with the claimant.  

The basis of the claim largely centred upon the concept of ‘deadnaming’ whereby an individual is referred to by the previous name rather than the new name adopted following transitionThis led to formal complaints and grievances being made by the claimantThe examples of deadnaming came with the fact that there were difficulties in changing her name for pension records and her name on the internal systems of the respondentAdditionally, at her locker space the deadname was just crossed out with the new name written rather than a new note being addedThe difficulty with this is that it ‘outed’ the claimant and this also occurred with third party agents leading to being misgendered on the telephone. 

Outcome: 

The respondent had agreed that there had been issues of deadnaming as outlined above.   There were other issues raised in relation to how the claimant was treated at work which were not found to have been made out by the claimant.   On the issue of the deadnaming it was found that it did amount to direct discrimination on the basis of gender reassignmentAs a result, the Tribunal awarded £21,000 for injury to feelings. This being in the middle band of Vento. 

Practical Guidance for Employers: 

This case demonstrates how crucial it is to have internal policies that are up-to-dateIn this situation, the policies were outdated and pre-dated the legislative reforms that had taken place in England and Wales.   This led to difficulties with systems in dealing with matters as arose in this caseEmployers ought to consider Equality policies and specific policies in relation to employees who are transitioningThis would include matters such as the name and how the name can be changed within internal systems. 

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 24/10/2023