Employee with dyspraxia who misgendered a colleague wins discrimination claim

David: Hello and welcome to the MF Mac Employment Podcast. I'm David Hossack, and I'm delighted to be joined today by my colleague, Fiona Meek.

Fiona: Hi, David. How are you doing?

David: I'm very well, Fiona. It's a while since you've been on the podcast .

Fiona: Yes, it has been a while, but glad to be back and with another interesting case to talk about today.

David: So what is it you're gonna be speaking about today?

Fiona: So this is another case that has featured in the press and in the headlines and is a case that discusses issues that can arise in relation to trans colleagues, pronouns, and misgendering. But this case is slightly different. Lots of cases we've seen look at clashing rights, looking at trans rights and those with philosophical beliefs, including gender-critical beliefs.

But this case is a little bit different and looks at a situation where the claimant brought a claim for disability discrimination following misgendering a trans colleague.

David: And that's one of the protected characteristics under the Equality Act of Two Thousand and Ten. And for our listeners' benefit, these are age, which can be elder or younger age, disability, gender reassignment, marriage and civil partnership, pregnancy, maternity, race, religion or belief, sex and sexual orientation.

So there's a whole host of protected characteristics there, and it's interesting to see how that plays into this particular situation. So not only do we see more of these cases involving protected characteristics and neurodivergent conditions being mentioned in the media, but it's actually following through into the Employment Tribunal service and if you look at the statistics, there are many more cases appearing than there used to be.

Fiona: Yes, absolutely. Certainly, it's an area that the volume of cases that are not only going to ACAS, but also, as you say, making it to final hearings in the Employment Tribunal. Yes, certainly, neurodivergence is an ever-growing area, particularly in the sphere of disability discrimination.

David: So the case we're gonna be looking at today is one of Sylvester against the University of Manchester and others, and as you say, it's received quite a lot of media attention. So what were the facts of this case, Fiona?

Fiona: Yes, this is a relatively recent case. It was heard in autumn of Twenty Twenty-Five.

So the claimant in this case began employment with the university in Twenty Eighteen. She was initially employed as an e-learning support officer and laterally as a learning technologist. Now, the claimant has dyspraxia, which was accepted as a disability by the university, and that's just a point to mention that sometimes we can see cases where disability status is in dispute, and the parties will have an argument about that at Tribunal, whether a claimant meets the threshold for disability.

But this was a little bit different in that the employer conceded that, so that was not an active point for discussion at the Tribunal. But what the Tribunal did look at was the way in which the claimant's condition impacted on her, and in particular, some of the issues that she experienced associated with that condition.

So what the Tribunal said about dyspraxia, and I'll quote here, they said, "Dyspraxia is usually associated with problems with physical coordination but has much broader and complex characteristics. It is a condition that affects the way that the brain processes and transmits information, and it is a lifelong condition."

And as we'll come on to look at in terms of the facts here, that's particularly important, specifically in relation to the way in which the brain processes and transmits information. So the issues here related to the claimant misgendering a trans colleague who was called CD throughout the judgment, so I'll just use that here.

CD transitioned from a woman to a man at some point in around Twenty Twenty-One to Twenty Twenty-Two, and the Tribunal heard that it wasn't in dispute that on the sixteenth of February in Twenty Twenty-Three, the claimant had misgendered CD when speaking with CD. This happened in front of a number of people who were in the claimant's team, and there were around seven or eight individuals present. The claimant used the incorrect pronoun, and then CD corrected the claimant. The claimant then apologized to CD but made a comment suggesting that she would probably misgender CD again in the future and was apologising for future occasions as well. Now, at that stage of the conversation, another colleague intervened and made clear that at no point should CD be misgendered, and everyone went back to working, but CD was later found crying and upset about this.

This incident was escalated, and in response, the employer put in various temporary measures, so that included the claimant being told that she couldn't work in the shared office space, so she was to have no physical interaction with the rest of her team who worked in the shared open plan space when she came onto campus, so when she wasn't working from home and was on campus, she had to book a separate room so that she didn't risk coming into contact with CD, and she was also not allowed to discuss any specific issues relating to this misgendering complaint with any of her other colleagues, including her line manager.

A few weeks later, the respondent started a formal investigation into what had happened, and by this point, the claimant had remarked that she was finding things really difficult, so she was isolated from her colleagues at work. She said she was receiving no wellbeing support from her line manager, and she also was receiving no update in terms of the status of the investigation, so that process was hanging over her.

She made clear at the investigation meeting that she had dyspraxia, and in particular said that this made it more difficult for her to gender CD correctly.

David: So an investigation process was gone through, Fiona, and a report produced. What did that report conclude?

Fiona: So the report concluded that the claimant had unlawfully harassed her colleague.

 Harassment is something that we've spoken about in lots of podcasts before. It's a type of discrimination claim that an individual can advance, which essentially looks at where there's unwanted conduct that's related to a relevant protected characteristic, so one of those protected characteristics you discussed at the start of the podcast, David, and if it creates an intimidating, hostile working environment for the person.

So they concluded that the misgendering had amounted to unlawful harassment. The recommendation was that the temporary measures that had been put in place should remain, and they also recommended that the claimant should be moved to another part of the university while further procedures were followed.

And they didn't particularly elaborate on those, but that inferred that a disciplinary process may follow.

David: So there was that sense that something might follow on.

Fiona: Yes, absolutely. So there were further issues. The claimant was then told she was being stood down from part of her role. She was removed from part of the service area, and the original restrictions that we mentioned remained in place.

So the claimant appealed the outcome of this investigation, and what that found is that there had not been enough consideration as to how her dyspraxia may impact on her ability to remember the pronoun change, but it also recognised the removal from her team to be disproportionate. Prior to the appeal, when the claimant was coming onto campus, she was having to use a back office so that she didn't come into contact with her colleague, and there were further restrictions put in place such that she wasn't actually to be on the same floor as her colleague CD.

So you can see that there were quite a lot of measures that were put in place here in relation to something that the claimant here was saying, "Well, actually, this has arisen because of the particular condition that I have."

David: I haven't chosen to do this. It's because of my condition.

Fiona: Absolutely. So the claimant then secured a different role within the university, but she made clear in her evidence that this had had a devastating impact on her career, and it gave various examples where her opportunities for development had lessened since she had had a change of role.

And ultimately, what's worth noting is that she never actually was subject to any disciplinary process and was later told that that would not be commenced.

David: But was that hanging over her for some time?

Fiona: Yes. We're going to have a look at that. But it was. It was around about a year, I think, that this uncertainty was hanging over her.

David: So we got to the stage where an application was made by the claimant to the Employment Tribunal. What claims were brought there, Fiona?

Fiona: The claimant brought a suite of claims under the Equality Act. This is quite common. We would see in situations like this where, when there has been an ongoing situation , you can have an initial complaint for something like disability discrimination, but then other complaints are brought on the back of that, like harassment and victimisation.

So the claimant in this case brought claims for harassment, victimisation, indirect disability discrimination, and discrimination arising from disability.

David: And I think of interest in this case principally are two types of discrimination. One is discrimination arising from disability, and that's where a person is treated unfavourably because of something connected with their disability, for example, related to illness, and that's unlawful unless the treatment can be justified as a proportionate means of dealing with a legitimate aim.

And then the other element of discrimination that I think we'll see a bit more of is the indirect disability discrimination. And that's where an employer would apply what might be said to be a neutral policy that would apply to all employees, but the effect of this disproportionately impacts upon a group of people with a particular disability.

And again, unlawful unless it's justified as a proportionate means of achieving a legitimate aim. So these are the two that probably feature most in this case, Fiona?

Fiona: Yes, and I think the ones to focus on as ultimately the claimant was successful with these two claims, but not successful with the others.

In terms of the discrimination arising from disability claim, as you said, David, this is where there's something that arises in consequence of the disability. So here what the claimant was saying is the slip of the tongue, the misgendering was In consequence of her disability, so she said that by virtue of the dyspraxia, she struggled to retain the information and to process this in the way that someone who is neurotypical would.

So she said this was the something arising from the disability and that she had been treated unfavourably due to the various measures that we saw the employer implement once the complaint was escalated. And in terms of what the Tribunal said, so I'm just going to read some quotes here. So they recognised that firstly they said, "The literature that the claimant has provided supports her contention that dyspraxia does affect short-term memory."

They said, "We note that this is consistent with the commentary which suggests that people with dyspraxia can have short-term memory problems, including retrieving information from the mind "on the spot."" They recognised that "delayed expressive grammar, including the use of pronouns, is also highlighted as associated with dyspraxia."

And they essentially recognised and agreed with the claimant that the condition of dyspraxia could manifest itself in the way that she described, and that could affect her short-term memory, specifically in the relation to the ability to recall the correct pronouns. So in short, the ET was persuaded by the claimant that it did take her longer to recall this and to remember than it may take someone else, but that was because of her dyspraxia.

David: And what did the Employment Tribunal find here?

Fiona: Ultimately, they found that this was unfavorable treatment and that the employer couldn't justify it, so they couldn't show that their actions were proportionate. What they said was that the claimant had been involved in these various processes for over eighteen months before it was finally confirmed to her that no disciplinary action would be taken.

 During that time, she was subject to all of these restrictions that we saw. So she was isolated from her colleagues. She was moved out of certain parts of her role. And there was really this chain of events which ultimately led to the claimant explaining the damage this has had on her career.

And what the Tribunal said is that there were lesser measures that could have achieved the same aims here without there being a finding of harassment in respect of the claimant's comments.

David: Yes. That's really interesting. And as you know, Fiona, I'm interested in mediation, and I think it's a very valuable tool that can be used, and that's one of the things that the Employment Tribunal mentioned.

Fiona: The Tribunal also said that there could have been less restrictive working arrangements which would not have resulted in the claimant feeling isolated or losing certain positions or aspects of her role. The Tribunal also stated that another lesser measure that the employer could have taken here would be not to refer the matter to the next stage in light of the claimant's disability.

 So reference to a disciplinary issue perhaps might not have been the appropriate outcome here, given that the claimant's misgendering as you say, it arose in consequence of her disability. It wasn't her fault. And ultimately, what the Tribunal had said is that it was really unfortunate that it took so long for the decision to be communicated to the claimant that disciplinary action would not take place because this could have saved the claimant a year of stress over whether she was ultimately going to lose her job.

David: So a really interesting case which brings light to this in a different way from some of the cases we've seen before.

Fiona: Yes.

David: What do you think the learning points are from this, Fiona?

Fiona: I think there are three key learning points certainly I would take from this judgment. So firstly, it's a constant reminder for employers about how carefully you need to balance competing protections under the Equality Act and when dealing with conflicting protected characteristics.

And secondly, I think it's a reminder that employers should not immediately make a knee-jerk reaction in these sorts of situations. Of course , we can understand why this would be so upsetting for the colleague involved here, but as the Tribunal had pointed out, are there less restrictive measures that could have been considered to try and manage the situation without leading to the claimant feeling the feelings of isolation and aspects of loss of her career that she did.

And finally, I think this is also a really helpful case as a reminder for employers not to substitute your own view on how you think a medical condition may manifest itself. This is something we see frequently where people will almost be the doctor in the case and think that this is an unusual suggestion of how this condition may manifest itself.

So certainly here, the Tribunal was asked by the claimant to look at literature which said, "Well, actually, dyspraxia can affect individuals in the way that I've outlined." And I think it's a reminder that if you're dealing with an individual who you think may have a condition that could amount to a disability, then occupational health advice really is the best starting point to make sure that you have up-to-date expert medical input so that you're not missing anything.

David: So I suppose trying to summarize that, it's a question of really pausing before you take some action. You don't take a knee-jerk immediate reaction, but you think about it, and you make sure that you're properly informed.

Fiona: Yes, absolutely.

David: So thank you very much, Fiona, and thanks everyone for listening. Please remember to subscribe to our podcasts and leave reviews in the usual way. And if you don't already subscribe, we have a free employment e-news bulletin that's issued every month, so please email us at employment@mfmac.com, and we'll get you added to that. So thanks again, Fiona, and I hope you'll be back with us again soon.

Fiona: Yes thanks very much, David.