Yes, held the Employment Tribunal in Ms K Sylvester v Stuart Phillpson & Ors.
The tribunal’s judgment in this case was unanimous. The tribunal found in favour of Ms Sylvester’s claims for section 15 discrimination arising from disability and for section 19 indirect discrimination. Her claims for harassment and victimisation failed.
Ms Sylvester worked as a Learning Technologist at the University of Manchester.
The claimant’s disability is dyspraxia. It was not in dispute that she was Equality Act disabled for the purposes of the claim at all relevant times.
On 23 February 2023, she unintentionally used the incorrect pronoun for a transgender colleague. The University alleged that she persistently continued to use the incorrect pronouns. Karenne Sylvester claimed she was subjected to harassment and unfavourable treatment, and there was a connection between the treatment and her disability.
The gendered pronouns had recently been changed. The claimant’s disability caused short-term memory issues, which she said caused a slip of the tongue. The PCP (provision criterion or practice) relied on by the claimant was that the University’s internal guidance on supporting trans staff and students stated that “Intentionally or persistently using the incorrect pronoun or trans person’s previous name constitutes harassment”.
The university did not accept that the claimant’s short-term memory issues caused a slip of the tongue. Ms Sylvester had apologised to the trans colleague and told them that she was likely to misgender them again, because dyspraxia impacts brain processing, not just physical coordination, as is widely believed to be the case.
The tribunal had no hesitation in finding that there was a link between Ms Sylvester’s conduct and her disability. There was also a clear case of indirect discrimination in the University’s policy that persistently using incorrect pronouns or dead-naming constitutes harassment because this did not make any allowances for someone like Sylvester and the impact of disability on her ability to comply with the policy. Anyone with any kind of autism spectrum disorder would find this policy difficult to comply with because they often take a literal view of the world. It indirectly discriminates against this group of people.
The case has been widely reported in the media. Financial compensation will be decided at a further hearing.
The Times:
Worker who forgot trans colleague’s pronouns wins disability claim
The Telegraph:
Uni worker disciplined for using wrong pronouns wins tribunal
The Daily Mail:
This blog was written by Elizabeth McGlone, Managing Partner.
