Croft v Royal Mail Group Plc

A person undergoing gender reassignment is protected from discrimination at every medically supervised stage. That protection does not, however, automatically entitle an employee who has begun to present in an acquired gender to use sex-segregated toilet facilities for that gender.

Under the Sex Discrimination Act 1975, entitlement depends on all the circumstances, including progress in treatment, the employee’s assessment and presentation, and the employer’s reasonable arrangements. A temporary requirement to use adequate separate unisex facilities at the beginning of a real life test may therefore be lawful. An employer’s statutory defence for employee harassment requires reasonably practicable preventive steps; likely effectiveness, time, trouble and expense may properly be considered.

The appellant was employed by Royal Mail and had begun medically supervised male-to-female gender reassignment. Having started to live and work as a woman, she wished to use a female toilet at her workplace. Royal Mail instead required her temporarily to use a unisex disabled toilet while it considered the issue and consulted about her progress.

An Employment Tribunal dismissed her claims for direct sex discrimination and constructive unfair dismissal. It found that colleagues had committed discriminatory harassment, but that Royal Mail had taken reasonably practicable steps to prevent it. The Employment Appeal Tribunal dismissed her appeal.

The central issue before the Court of Appeal was whether the temporary toilet arrangement, and related requests for medical information, amounted to unlawful discrimination against a person undergoing gender reassignment.

1. Appeal dismissed unanimously. Lord Justice Pill held that the tribunal had applied the wrong test by treating final surgery as the decisive point at which gender changes for discrimination purposes. Its conclusion was nevertheless correct.

2. Section 2A of the Sex Discrimination Act 1975, read with the definition of gender reassignment in section 82, protects those undergoing medically supervised reassignment at all stages. It does not create a third sex or confer an immediate and automatic right to use the toilet facilities of the acquired sex. Conversely, a permanent refusal to recognise an employee presenting as a woman could be discriminatory even before surgery.

3. For sex-segregated toilets, the tribunal must determine when the employee is entitled, in the circumstances, to be treated as a woman for access to female facilities. Relevant matters include progress in treatment, the employee’s self-assessment and presentation, and the employer’s conduct. Workforce susceptibilities may be considered but cannot govern the decision. The employer must respect the employee’s dignity and freedom.

4. At the early stage of the appellant’s real life test, temporary use of adequate unisex facilities was not less favourable treatment or discrimination. Royal Mail had acted flexibly and responsibly, and was not obliged to fix the proposed June date for access to female facilities. Lord Justice Jonathan Parker agreed, describing the appropriate comparators as non-transsexual employees of either sex and concluding that the temporary arrangement was not less favourable treatment. Lord Justice Keene agreed with both judgments.

5. The section 41(3) defence was established. Reasonable practicability permits consideration of the likely benefit of proposed preventive measures, as well as their time, trouble and expense. Royal Mail’s repeated communication of its harassment policy, changes to records and names, and response when individual harassers were identified were reasonably practicable steps.

6. The request for limited medical information about external anatomy and surgery was relevant and non-discriminatory. There was therefore no repudiatory conduct capable of founding a constructive dismissal.

• Court of Appeal (Civil Division): Appeal dismissed: [2003] EWCA Civ 1045.
• Employment Appeal Tribunal: Dismissed the appellant’s appeal from the Employment Tribunal. No citation was stated in the judgment.
• Employment Tribunal, Leicester: Unanimously dismissed the direct discrimination and unfair dismissal claims. It found discriminatory acts by employees but upheld the employer’s defence under section 41(3) of the Sex Discrimination Act 1975.