Transgender worker loses harassment claim over name change on rota

In the case of Mandie Monroe v Central Bedfordshire Council, a trans woman argued that she had been harassed relating to her gender reassignment because her employer had deadnamed her on the rota. [Deadnaming is a term for when someone refers to a trans person by the name they had before transitioning.]

Facts

The claimant is a transgender woman. She was engaged by the Council in April 2022. On her application form she used the name “Andy Mason” and was also referred to by this name during her interview.

She later explained to a colleague that she was in the early stages of transitioning and would go by the names Andy or Mandi and wouldn’t take offence if either was used. She signed off her emails as Mandi, or M but retained Andy in her email address. 

During a MS Teams video call in her first month of employment, a colleague (Ms H) asked the claimant what name to use for the rota.  The claimant didn’t respond directly but stood up to show Ms H a long skirt and top. Ms H interpreted this behaviour as the claimant wanting to be named as Mandi on the rota.

A few days later, the claimant’s line manager, Ms R, spoke to the claimant to explain that, whilst she was free to use whatever name she wished, for staff and customers there needed to be consistency and the claimant should consider what first name she wanted to use.  She said that she was content to be Andy in the workplace and Mandi outside it.  She also said that she would accept the pronouns he/him.

Ms H had already prepared a rota for week commencing 2 May 2022 including the name of Mandi. A few days later, after the rota had been sent out, Ms R contacted Ms H to confirm that, in future rotas, the claimant should be referred to as Andy to avoid confusion with customers.

Ultimately, the claimant’s assignment with the Council was terminated (for reasons unrelated to these particular facts). The claimant subsequently pursued a number of claims, including a claim for harassment related to gender reassignment. Specifically, she argued that Ms R had harassed her by: 

• stating that it was confusing to have her on the rota as Mandi whilst her email address used her birth name; and 
• by asking Ms H to refer to her as her birth name on the rota.

Law

A person is protected under the Equality Act 2010 if they have the protected characteristic of “gender reassignment”. This applies where the person is proposing to undergo, is undergoing a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. Provided a person is somewhere along that path, they will be protected. It’s a personal process and they don’t need to have had surgery, take hormones or be under medical supervision. Nor do they need to have a Gender Recognition Certificate.

They are also protected from being harassed. Harassment is defined as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. 

In deciding whether the conduct had the above effect, the tribunal will take into account the perception of the victim, the other circumstances of the case and whether it was reasonable for the conduct to have that effect. 

Decision

The tribunal held that the claimant had not been harassed on the grounds of her gender reassignment for the following reasons: -

• It did not amount to “unwanted conduct” for Ms R to speak with the claimant to explain that using both names was confusing. Ms R asked her to choose how she wanted to be addressed and did not seek to influence that choice. 
• The claimant had elected to be called Andy during her interview and application form and had subsequently said that she did not mind which name colleagues used to refer to her. Critically, the claimant had also confirmed to Ms R that she wished to be referred to as Andy at work after Ms R had sought clarification.
• Ms R’s act of clarifying the position, and the subsequent name change on the rota, was not conduct that amounted to harassment (i.e. it did not create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant).

Tips for employers

This decision is a first instance tribunal decision so isn’t binding on other tribunals but can provide a useful indicator of how similar issues might be dealt with. 

The facts are somewhat unusual. The claimant had started to transition in 2018, four years before she obtained this job and wore female clothing at work. Despite that, she appeared to be relaxed about which name her colleagues used and, when asked directly to use one name, expressed a preference to be referred to by her birth name. She only took issue with the Council after she was dismissed. 

Contrast that case with de Souza v Primark in 2017. An employment tribunal held that Ms de Souza had been harassed and directly discriminated against because she was transgender.  She had presented her passport to evidence her right to work in the UK which was in her birth name. Primark said that payroll would have to use her birth name, but she could use whatever name she wanted on her name badge and with colleagues. She asked to be referred to as her new name but Primark didn’t put in place a system to ensure this happened and used her birth name on the daily rotas. This led to her being outed as transgender. Staff gossiped and speculated about her, deadnamed her, made jokes at her expense and insulted her. The tribunal awarded her £47,433 compensation which included £25,000 for injury to her feelings.

Employer’s guide to trans rights

To help you to understand the law and support transgender employees in your organisation, we’ve put together an employer’s guide to trans rights in the workplace. You can access it here.

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