Gendered Swearwords and Discrimination
Have you ever given much thought to the presumed gender behind a particular swearword? This is a question an employment tribunal found themselves being asked to consider recently.
The case involved Miss Fischer, a trans woman who was working via an agency as a bus driver. After a short period, her engagement with the bus company was terminated and she brought a claim for direct gender reassignment discrimination under the Equality Act 2010.
One aspect of her claim was that a colleague, who was employed directly by the bus company, called her a “wanker” whilst they were on shift. We’ll refer to this as “the Gendered Swearword” from now on…
Miss Fischer argued that the Gendered Swearword amounted to discrimination on the grounds of her gender reassignment in that the use of the Gendered Swearword towards her was less favourable treatment because of her gender reassignment.
Miss Fischer also claimed that the bus company were vicariously liable (responsible) for their employee’s use of the Gendered Swearword against her. For the purposes of the Equality Act 2010, it is considered that anything done by an employee in the course of their employment is treated as also being done by the employer, unless the employer can show that it took all reasonable steps to prevent its employee from carrying out the particular act.
Ultimately, Miss Fischer’s claim failed on the basis that the tribunal found there was no evidence of the Gendered Swearword being used and that the incident that Miss Fischer complained of had simply not occurred.
Rather than leaving the matter there though, the tribunal went on to consider what their judgment would have been if in fact there was evidence that the incident had occurred as alleged. They accepted that the use of the Gendered Swearword in these circumstances would have amounted, on the face of it, to a claim for direct discrimination. The thinking behind this is that it is generally accepted that the particular Gendered Swearword is used with reference to men and that there are other swearwords that are generally considered to refer to women. The Gendered Swearword was therefore not gender neutral and its use could amount to direct gender reassignment discrimination.
The tribunal then moved on to consider whether the employer had taken all reasonable steps to prevent the discrimination and despite finding the employer had in place an equal opportunities and harassment policy, that this was shared with all agencies prior to engagement and formed part of all induction processes, that staff were encouraged to report any concerns they may have and that Miss Fischer’s concerns had, to some extent, been investigated during her engagement, the tribunal found that the employer had not done all that was reasonable in the circumstances to prevent the discrimination from occurring.
Of note, they commented on the age of the policy referred to, highlighting that this was last updated in 2007 and referred to out of date legislation, that the policy lacked a focus on inclusion in the workforce and that the employer did not take sufficient steps to ensure the policy was readily accessible to its employees and actually understood. The tribunal did not consider it reasonable to simply place the policy on a staff notice board in the depot, particularly as employees did not spend much time in the depot.
In these circumnutates, had the tribunal found that the Gendered Swearword incident had actually occurred, it is likely that the employer would have been held liable for the discrimination as they had not taken all reasonable steps to prevent their employee from acting in a discriminatory way.
Whilst this is not a binding judgment, it is an interesting insight into how a tribunal may consider the use of particular swearword in relevant circumstances and it provides further guidance on the reasonable steps defence. It is not enough to just have a policy in place stating that the company is an equal opportunities employer – this needs to be regularly reviewed and updated, shared and explained to employees, with staff training to raise awareness and promote inclusivity in the workplace.
If you would like to discuss the processes that your company can put in place that may assist with the reasonable steps defence or have any other employment related queries, please contact one of the team on 01246 555 111 or contact:
Amy Hallam
Head of Employment
t: 0114 3496989
e: amy.hallam@brmlaw.co.uk
Ellie Leatherday
Associate
t: 01246 564002
e: ellie.leatherday@brmlaw.co.uk
Jade Taylor
Trainee Solicitor
t: 01246 560587
e: jade.taylor@brmlaw.co.uk
