Case study: Fischer v London United Busways Ltd

This recent judgment provides a useful indication of how an Employment Tribunal could view the use of language and swearwords in cases of gender reassignment discrimination.

Claims

The claimant (F), was a trans woman who at the time did agency work as a bus driver for London United Busways Ltd. After 3 months, the employer terminated her engagement, following which she brought a claim under the Equality Act for direct gender reassignment discrimination.

F claimed she was treated less favourably by the employer and its employees due to her gender reassignment and cited three acts:

1. On 9 January 2021, another bus driver drove their bus millimetres away from F while she was walking across the bus yard, which made her feel intimidated;
2. On 13 January 2021, another employee referred to F as a “w***r” while she was at her allocation desk;
3. The employer terminated her engagement.

The employer denied that the incident on 13 January 2021 took place and asserted that the incident on 9 January 2021 was unrelated to her gender reassignment and was not intended to intimidate. The employer said that if the Tribunal found that the two incidents had occurred as F alleged, they as an employer had taken all reasonable steps to prevent their employees from doing those specific acts or anything of that description. They contended that they could not be vicariously liable for the alleged discrimination.

Finally, the employer argued their reason for terminating F’s engagement was based on her performance and costs incurred as a result of her actions rather than because of her gender reassignment.

Decision

The Employment Tribunal dismissed all three of F’s complaints of unlawful discrimination due to her gender reassignment.

In its decision, the majority of the Tribunal panel ruled that the incident on 13 January 2021 where she alleged she had been called a “w***r” had not taken place. This was due to there being insufficient evidence for the Tribunal to make such a finding. A minority of the Tribunal panel had found the incident on 13 January 2021 had taken place, primarily based on the poor credibility of one of the employer’s witnesses. The Tribunal went on to consider whether, if the incident had taken place, was the use of the word “w***r” would amount to a discriminatory act.

It was suggested by a witness for the employer that “w***r” is gender neutral. The Panel members’ own experiences were taken into account and formed a part of its Judgment. The use of the word was in their opinion a term which applied to men, whilst there are different swear words that are commonly used to insult women which carry the same connotations.

The caselaw requires the act to be sufficiently connected to the protected characteristic in question in order to be discriminatory. In its judgment, the Tribunal found that the word “w***r” and what it implies was sufficiently connected to F’s birth sex to infer discrimination. On that basis the Tribunal felt that the use of the insult would have been sufficient to establish a prima facie case of gender reassignment discrimination (had it taken place).

Takeaways

Swearing will almost always be highly inappropriate in most workplaces and will often be offensive. Here, a supervisor for the employer claimed that “w***r” was a gender-neutral term. This was unanimously rejected by the Tribunal’s Panel. One member went further considering it to substantially undermine the credibility of the witness’ evidence.

It is worth noting that when investigating allegations that unacceptable language has been used, the context of the language and the effect certain words can have on different people can be important. A key concern of the Tribunal was that the bus company’s employees in this case seemed to have little awareness of appropriate language, inclusive communications and interactions. The employer’s manager in particular showed a lack of knowledge when it came to language and behaviour. The employer was also not helped by the fact that their relevant policies had last been updated in 2007 and referred to out of date and superseded legislation.

If it had been established that F had been called a “w***r” then it is likely that the employer would have been found liable for discriminatory conduct. The Tribunal felt the bus company would not have been able to prove that they had taken “all reasonable steps” to prevent the discrimination from arising and so avoid liability. The out-of-date policies, inadequate inclusivity and diversity training and awareness were all features the Tribunal expected to see to enable the employer to avoid liability.

Henrietta Donnelly is a solicitor in our employment law team. Read more case studies and other articles on our employment blog.