The modern day “pronouns in the workplace” trend, from whichever side of the divide it is approached, can be a minefield. Some insist, others encourage. Some avoid, others challenge. But what happens when protected characteristics collide?
Karenne Sylvester, a learning technologist at Manchester University, was afflicted with dyspraxia, a lifelong neurological condition affecting motor skills, coordination and planning. She was aware by autumn 2022 that her colleague CD had transitioned from woman to man, and that by January 2023 CD was using “he/his” pronouns, notably via an email signature.
A key sentence in the Sylvester v Phillipson tribunal decision: “It is not in dispute that on 16 February 2023 the Claimant misgendered CD.” This evidently took place when 8 individuals, including Ms Sylvester and CD, were present. Save that Ms Sylvester apologised, and that CD was found crying later, further details of that date’s events are conspicuous by their absence.
The University’s procedures required a formal investigation. In the meantime, it made arrangements to isolate Ms Sylvester from her team colleagues by barring her from shared office space. Six weeks later, matters were escalated to a formal complaint. Ms Sylvester cited her dyspraxia, evidently to no avail. A report confirmed that she had unlawfully harassed CD, and that this was sufficiently serious to justify disciplinary action as prescribed by policy.
Ms Sylvester appealed against the report’s conclusions. In the four months before her appeal could be heard, she alleged that she was subjected to punitive measures affecting her duties, workplace and prospects. A lengthy period of sickness absence intervened. It was not until October 2024 that she was advised that the misgendering would not lead to a disciplinary process.
Ms Sylvester brought claims against the University and two of its officers for direct and indirect disability discrimination, victimisation and harassment. The latter two claims failed, mainly because the University’s subsequent attitude and actions towards her were not for a reason related to her disability, and partly because there was no protected act to trigger victimisation.
However, the disability discrimination claims succeeded. The influence of dyspraxia had only scarcely been taken into account by the investigators. In defining the complaint as one of “repeatedly and publicly” misgendering CD, against the background of a policy that cited “intentionally and persistently” using the incorrect pronoun, they failed to explore the dyspraxia element sufficiently at an early stage. This factor served to condemn the University’s subsequent punitive measures. There were many lesser steps that could have been taken.
As to indirect discrimination, the “provision, criterion or practice” that left dyspraxia sufferers at a particular disadvantage was the internal guidance document’s provision “intentionally or persistently using the incorrect pronoun or trans person’s previous name”. This paid insufficient regard to disabled persons with short term memory loss, and put them at a particular disadvantage. This guidance was deemed not to be a proportionate means of achieving a legitimate aim.
The hearing lasted five days, with a further day needed for remedy. Could the University ever have foreseen that policy and guidance material aimed at helping employees with one particular protected characteristic might one day lead to a time consuming and costly claim from an employee with a different one?
Might your workplace policies be overprescriptive and in need of a review? Or are you looking for a way to stop a discrimination dispute escalating? Get in touch. Contact David Cooper via david@wolverhamptonemploymentlaw.co.uk or on 07450 350715.
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