Veitch Penny LLP - Exeter | Crediton, Devon

Case

Croft v Royal Mail Group Plc
Court of Appeal (18 July 2003)

Issues

(1) Sex discrimination
(2) Male to female transsexual
(3) Factors to be applied to determine whether an employer has discriminated against an employee on grounds of sex

Facts

Sarah Croft was employed in 1987, when she was still a man. In 1997, Croft took medical advice about her doubts regarding her sexuality. She concluded that she wanted to change her gender role and was prescribed feminising hormones. It was her intention to undergo gender reassignment surgery.

In August 1998, following discussions with her employer and a week’s absence she attended work dressed as a woman. Croft wanted to use the female toilets from the outset, but following objections from female employees who had known Croft for sometime as a man Croft agreed to use the unisex disabled toilet. She was of the view that she was entitled to use the female toilet once the surgery had been completed, and would use the unisex facilities until then.

The employer told Croft that if she insisted on using the female toilets, she would be suspended for insubordination. It was confirmed to Croft that she would be able to use the female toilets in the future, but did not give a concrete date.

Croft resigned on the basis that she was constructively dismissed as she had accepted the employer’s repudiatory breach of contract. She entered a complaint to the tribunal of sex discrimination.

The tribunal dismissed her claim, as before her treatment Croft remained male for the purposes of the Sex Discrimination Act 1975. The Appeal Tribunal went on to dismiss her appeal.

Croft then appealed to the Court of Appeal. She argued that it was unlawful for her employer to refuse to allow a pre-operative transsexual, who presented as female, to use the female toilets, or to require her to use a unisex toilet. Section 2A(1)(c) of the Act states that a person discriminates against another person if he treated that person less favourably than he would treat other people, on the ground that the person intended to undergo, was undergoing, or had undergone gender reassignment.

Decision

It was found that a formerly male employee could not, by presenting as a female, necessarily and immediately assert the right to use female toilets. The status of transsexual did not automatically mean an employee was automatically allowed to be treated as a woman with regard to toilet facilities.

A permanent refusal to permit someone presenting as a woman from using female facilities could be an act of discrimination even if the person had not yet undergone surgery.

With regard to toilet facilities, there was an issue in that separate facilities were required for men and women. The tribunal had to make a judgement as to when Croft became a woman and was entitled to use the same facilities as other women. It required a consideration of all the circumstances to determine the point at which a person in the employee’s position was entitled to use female toilets. Such circumstances included the employee’s conduct and also that of her employer.

An employer would have to consider the stage of treatment reached, together with the employee’s own assessment and presentation. It could also consider the opinion of other members of the workforce but importantly could not be governed by it.

In this case, the employer had not been guilty of direct discrimination. The employers had taken appropriate measures in the circumstances. It was entitled to rely on the existence of a unisex disabled toilet as a sufficient facility for a period of time. It had a flexible point of view and it was not unreasonable for it not to give a concrete date for the use of the female toilets.

Comments

The Court of Appeal’s judgement in this case concludes that it is very much dependent “on the circumstances” to determine the point at which a male to female transsexual becomes a woman, and is therefore entitled to use the same facilities as other women. The Court of Appeal’s decision does not provide an easy answer for employers, but it does go some way to expose those practical problems that may arise whatever solution an employer applies.