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ET says some swear words may discriminate against trans workers

September 15, 2023
Employment Law

Are some swear words only normally directed at people of a particular gender? If so, could it be discriminatory to direct them towards a trans person with a different gender identity? This is the issue considered in the recent case of Fischer v London United Busways Ltd (2023).

The facts

Amanda Fischer is a trans woman who previously worked as a bus driver for London United Busways (LUB). After her employment was terminated, she brought claims against LUB, alleging that she had been the victim of direct gender reassignment discrimination. Part of her claim asserted that a colleague had called her a ‘w**ker’. She argued that this was a term that would normally only be aimed at men. Therefore, its use in relation to Ms Fischer essentially amounted to ‘mis-gendering’ and constituted less favourable treatment. 

Ultimately, Ms Fischer's claim failed on the basis that the ET found that the alleged comment had not been made. However, the ET panel indicated that had the comment been made, it was of the view that the word ‘w**ker’ is not gender-neutral; it is a term normally aimed at men. As a result, if it had been used in relation to Ms Fischer, on the face of it, it would have given rise to a direct gender reassignment discrimination claim.

Is this decision right?

Interestingly, in a recent thread on Twitter (aka X), Anya Palmer (a barrister at Old Square Chambers) suggested that the ET had obviously made a mistake in reaching their conclusions. Ms Palmer pointed out that in order for there to be a prima facie direct gender reassignment discrimination claim, Ms Fischer would need to show that she had been subjected to less favourable treatment when compared with an appropriate comparator. In a case such as this, she argues that the comparator would be someone whose position is materially the same as Ms Fisher’s, but who does not possess the relevant protected characteristic of gender reassignment. Miss Palmer argues that the correct comparator would, therefore, be a biological male who is not transgender. Given that a biological male who is not transgender could equally be called a ‘w**ker’, Miss Palmer argues that there was no less favourable treatment.

Time will tell

It remains to be seen whether the provisional conclusions of the ET in this case will be applied in future cases. Could (should?) the use of gender-specific language which has the effect of ‘mis-gendering’ a trans person amount to direct gender reassignment discrimination? We may need further case law on this point before we can come to a clear conclusion.

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