Employment Law case update: De Souza E Souza v Primark Stores Ltd

Ms Alexandra De Souza, worked as a Retail Assistant in Primark’s Oxford Street store. She informed Primark that she was transgender when she applied for a role in 2016 and told her interviewer that although her passport contained her birth name, Alexander, she would prefer to be called Alexandra.

Ms De Souza was told her birth name would be required for her pay but she could use whichever name she wished for her name badge. However, Primark’s HR Department did not take into account Ms De Souza’s preferred name when logging her onto the IT system. This led to her birth name being printed on her name badge and on her daily allocation sheets which were circulated to supervisors on the shop floor.

A supervisor, who had previously been using Ms De Souza’s preferred name for a number of weeks, began calling her Alexander and would laugh when corrected. Further incidents of bullying and unfair treatment regarding Ms De Souza’s gender identity took place. Staff would make comments about Ms De Souza’s sexuality, some staff members sprayed men’s perfume over Ms De Souza, other staff members made inappropriate comments such as: “she’s got the devil inside her” and “she is a joke”.

Ms De Souza raised complaints over the way she was being treated by staff members. These complaints were not taken seriously and Ms De Souza was told to calm down and to stop drawing attention to herself. Primark failed to properly investigate Ms De Souza’s complaints and deal with them in an appropriate manner, in particular failing to inform her of the outcome of her grievance and of her right to appeal.

Ms De Souza brought claims of constructive unfair dismissal and direct discrimination on the grounds of gender reassignment in the Employment Tribunal (ET). The ET found in her favour and was critical of how the matter had been conducted by Primark. Ms De Souza was unable to return to work for a lengthy period of time, developed panic attacks and became insecure about her gender identity.

The ET found “the injury to the claimant’s feelings is very severe indeed, going to her very identity and ability to function in society” and that it was “shocking that the respondent 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 ET recommended that by 31 March 2018 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 of handling grievances.

This case highlights a number of important issues such as ensuring you have up-to-date policies to help maintain the confidentiality of sensitive employee data. Employers should also ensure staff are adequately trained to deal with grievance processes and that all complaints are dealt with in an appropriate manner.

This article is from our weekly Employment Law Newsletter published on 15/03/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.