An employment tribunal has told Primark to adopt a policy on how to deal with transgender staff after it found an employee was discriminated against in relation to gender reassignment.
Retail assistant Alexandra de Souza E Souza was constructively dismissed from her position at Primark’s Oxford Street (West) store after being harassed for being transgender.
The store failed to deal with the matter appropriately, which the employment tribunal found amounted to direct gender reassignment discrimination. She was awarded £47,433.03 in compensation to cover injury to feelings and loss of pay and pension contributions.
Transgender discrimination
De Souza E Souza informed Primark that she was transgender when she applied for a role in August 2016.
Her birth name – Alexander – appeared on her passport, but she told the interviewer that she would like to be called Alexandra.
The interviewer said the company had to use her official name for pay, but she could use whatever name she liked on her name badge.
Before she began the role, HR staff erroneously changed the preferred first name on the company’s IT system from Alexandra to Alexander, and her title from Miss to Mr. This error was printed on her name badge and daily allocation sheets that were handed to supervisors on the shop floor.
Despite using her preferred name for a number of weeks, a supervisor began calling her Alexander and laughed when she was corrected.
Other staff also subjected her to unfair treatment on the basis of her gender identity. She alleged that staff sprayed men’s perfume over her till until she started coughing, said she had “a man’s voice”, made comments about her sexuality, and called her “evil” and “a joke”.
Complaints were made about the way other employees had treated her, including an incident when a colleague claimed there were “no ladies” in the female toilets when an electrician needed access, despite de Souza E Souza being there.
All this may well have been prevented had there been proper systems from the outset to preserve confidentiality for transgender employees. We find it shocking that the respondents could not devise a way of keeping the claimant’s legal name off the core allocation sheets and out of the knowledge of her supervisors” – Judge Lewis
She claimed her complaints were not taken seriously and she was simply told to calm down as she was “drawing attention to [herself]”.
The judge found that she was constructively dismissed by the company as the lack of action and remarks made about her transgender status led to her resignation.
She claimed she was bullied out of a job that suited her and the discrimination had made her insecure about her gender identity. She said she was unable to return to work for some time and had developed panic attacks.
Judge Lewis said: “All this may well have been prevented had there been proper systems from the outset to preserve confidentiality for transgender employees. We find it shocking that the respondents could not devise a way of keeping the claimant’s legal name off the core allocation sheets and out of the knowledge of her supervisors.
“The respondents ought to have been able to devise a system whereby only one or two people in HR and payroll were aware of the claimant’s transgender status.”
The employment tribunal recommended that by 31 March Primark should:
- adopt a written policy on how to deal with new or existing staff who are transgender or who wish to undergo gender reassignment
- include a reference to the existence of a policy of confidentiality in regard to transgender new starters in training materials for managers
- amend the materials used for equality training of staff, management and HR to include, if not already there, references to transgender discrimination
- ensure that transgender discrimination and harassment is referred to in all of its equality and harassment policies, along with any other protected characteristics under the Equality Act 2010
- add into the training materials for management on handling grievances.
A spokesperson for the retailer, which is owned by Associated British Foods, said: “Primark is an equal opportunities employer and we do not tolerate discrimination of any kind, against any person, on any grounds. 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.”
Whew, looks like I dodged a bullet here. Interviewed for HR manager role at the Brighton store in 2014 but pulled out as had too many concerns about the company. While I may have been able to have some impact at this store, overall the company is clearly woeful when it comes to HR – to not even reference the protected characteristics in its Equality policy is inexcusable, it shows they don’t even have the basics right.