A transgender Primark employee told by her employer she had a “man's voice” and “smelled like a men's toilet” was subjected to gender reassignment discrimination, a tribunal has ruled.
London Central Tribunal heard that Miss Alexandra de Souza E Souza worked for the discount retailer in its Oxford Street (West) store as a retail assistant from 2 September 2016 until her resignation on 25 February 2017.
In a judgment from December 2017, published on 7 February 2018, the judge allowed de Souza’s claim for harassment, finding that Primark had conducted “very severe” injury to de Souza’s feelings and that she was “bullied out of a job”.
De Souza has been a transgender woman for around 16 years. Gender reassignment is a protected characteristic under the Equality Act 2010.
The tribunal found that Primark did not properly deal with the discrimination or harassment de Souza was subjected to on several occasions.
One of de Souza’s supervisors, Ms Chiamonwu, called her “Alexander/Alexandra” in front of customers and another colleague.
Fellow retail assistant Ms Amboyo sprayed scent on de Souza until she coughed, and said she could smell urine “like a men’s toilet” and that de Souza had a “deep, man’s voice” on 5 December 2016.
The next day, de Souza’s colleague, Tia Browne, told an electrician that he could enter the ladies’ toilets as there were “no ladies in there”, when she knew de Souza was present. On 5 January 2017, an unnamed key member of staff said she would pray for de Souza because she had “evil inside her”. She was also called “a joke” and was laughed at.
De Souza wrote a grievance letter on 5 December 2016. Primark’s HR team asked her department manager, Darell Wyatt, to interview her and the employees. She was not informed of the outcome of her complaint or given the opportunity to appeal it.
De Souza was absent with stress from 6 to 20 January 2017, and reported her complaints to the police on 6 January. She informed store director for people and culture Peter Campbell that she had done so that same day.
When de Souza returned to work on 23 January 2017, she spoke to HR about the employees she felt were talking about her the following day. On her way out of the store, she said she would be sending a resignation letter.
She did not return to work the next day. On 31 January, Mr O’Mahoney of HR telephoned her, at which time de Souza said she would not return to work unless Primark addressed the situation.
He said it was her responsibility to keep Primark informed of the reasons for absence. Therefore he was going to invite her to an investigatory interview on 10 February 2017 to establish the facts surrounding her absence.
Meanwhile, de Souza was named employee of the month.
According to the claimant, while waiting outside the HR office for the meeting, colleagues who she alleged had bullied her walked past de Souza and laughed. She did not receive a reply until an email dated 20 February 2017, which offered her another meeting, and asked whether she was intending to resign. She did so via email on 25 February.
The tribunal recommended that Primark adopt a written policy regarding how to deal with transgender staff or those who wish to undergo gender reassignment, and amend materials it uses for employees’ equality training to include references to transgender discrimination.
Judge Lewis ruled de Souza had been constructively dismissed, and that her treatment violated her dignity and created an “intimidating, hostile, degrading, humiliating or offensive” environment in which she was subjected to gender reassignment discrimination.
The respondents subjected the claimant to direct gender reassignment discrimination by failing to properly investigate the matter and deal with it appropriately, in particular by the failure to give the claimant the outcome of her grievance or advise her of the right of appeal, the judgment stated.
However, allegations found to be neither gender reassignment harassment nor direct discrimination included issuing new starter material and name badge in the name ‘Alexander’, asking the claimant to move a large stack of baskets in a trolley, outing the claimant before another member of staff, laughing at her when she walked into the canteen, and telling a colleague: “We need to get rid of her. She is employee of the month.”
De Souza was awarded £47,433.03, including a 25 per cent uplift from Acas, past and future loss of earnings and loss of pension of £19,872.86, injury to feelings of £25,000, interest on past loss of earnings of £472.50 and interest on injury to feelings of £2,087.67.
Karen Jackson, director of didlaw, said it was alarming that Primark did not have a zero-tolerance policy on transgender discrimination to stamp out the behaviour. “De Souza’s working life was hell, and working environments need to be tolerant, safe and free from discrimination so all employees are treated with dignity and respect,” she told People Management.
“Employees who comes to their employer with a grievances need to feel assured that it will be dealt with accordingly. It needs to be tackled head on with awareness training.”
A Primark spokesperson said: “Primark is an equal opportunities employer and we do not tolerate discrimination of any kind. All policies relating to our people are based on fair treatment for all, to ensure the promotion and practice of equality of opportunity.
“We are extremely disappointed that, on this occasion, our usual high standards in implementing these policies were not met and we sincerely apologise to the employee in question for this. We remain fully committed to equal opportunities and are reviewing our internal policies and training to ensure similar issues do not arise in the future.”
Employers were urged to demonstrate a zero-tolerance policy on transphobic bullying and harassment in workplaces by the UK’s leading LGBT charity, Stonewall. Its research, published in January 2017, revealed that half of transgender and non-binary people had hidden or disguised that they were LGBT in the workplace for fear of discrimination.