S Croft v. Consignia Plc

Factual and Procedural Background

The Appellant, a pre-operative transsexual employee of the Defendant, sought to use female toilet facilities at her workplace in accordance with her gender presentation. The Defendant, a large national employer, refused permission, citing workplace concerns. The Appellant claimed constructive and unfair dismissal and discrimination. The Employment Tribunal dismissed her claims, finding no direct discrimination by the employer and no unfair dismissal, and held that the employer had taken reasonably practicable steps to prevent discrimination by fellow employees. The Appellant appealed the Tribunal’s decision.

The Appellant began employment over 10 years prior as male and was diagnosed with gender dysphoria in January 1998. She commenced feminising hormone treatment and sought to live and work presenting as a female, including using female toilets. The employer initially agreed she could use a designated disabled toilet temporarily. Over time, disputes arose regarding use of female toilets, medical information requests, and workplace harassment. The Appellant resigned, claiming constructive dismissal and discrimination.

The Tribunal found that the employer had acted reasonably and had taken steps to address workplace concerns, including harassment policies and communication efforts, but that the Appellant had not been constructively dismissed. The employer was held not liable for discriminatory acts of employees due to reasonable preventative measures taken. The Appellant appealed to the Employment Appeal Tribunal.

Legal Issues Presented

1. Whether the employer unlawfully discriminated against the Appellant by denying her use of female toilet facilities.
2. Whether the employer’s request for confidential medical information was discriminatory or improperly pressured the Appellant.
3. Whether the employer was liable for discriminatory conduct by fellow employees.
4. Whether the Appellant was constructively unfairly dismissed due to the employer’s conduct.
5. The interpretation and application of workplace health and safety directives and equality legislation relating to gender reassignment.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that forbidding her use of female toilets constituted less favourable treatment amounting to unlawful discrimination.
• She contended that the employer pressured her to provide confidential medical information unjustifiably.
• The Appellant claimed constructive dismissal caused by the employer’s failure to accommodate her gender reassignment needs.

Respondent's Arguments

• The employer maintained that the Appellant was not prohibited from using male toilets but had agreed to use the disabled toilet facilities temporarily.
• It argued that the denial of female toilet use was consistent with workplace health and safety regulations requiring separation of facilities by legal sex.
• The employer asserted that requests for medical information were reasonable and not discriminatory, aimed at verifying medical status to manage workplace arrangements.
• It contended that reasonable and practicable steps were taken to prevent harassment and discrimination by other employees.
• The employer denied any breach of contract or implied term of trust and confidence that would justify constructive dismissal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the factual matrix, including the Appellant’s gender dysphoria diagnosis, her transition process, and the employer’s responses. It analyzed workplace provisions under the Workplace Directive and domestic regulations requiring separate sanitary facilities for men and women, interpreting "men" and "women" as defined by legal sex or the employer’s reasonable belief of legal sex at the time.

The court found that the employer’s requirement that the Appellant use gender-neutral disabled toilets was consistent with these provisions and did not constitute less favourable treatment compared to other employees. The employer’s actions were seen as reasonable attempts to balance the Appellant’s needs with the privacy and propriety concerns of other employees. The court rejected the argument that the employer unlawfully discriminated by denying use of female toilets prior to surgical reassignment.

Regarding medical information, the court held that the employer’s request for confidential medical reports was a reasonable and common practice to verify medical status when exceptional workplace adjustments were sought. There was no evidence of improper pressure or conditioning of toilet use on provision of such information.

On discrimination by fellow employees, the court accepted the Tribunal’s findings that the employer took reasonably practicable steps, including disciplinary action and harassment policies, to prevent discriminatory conduct. The court recognized that further steps might have been planned but were interrupted by the Appellant’s resignation.

As to constructive dismissal, the court agreed with the Tribunal that no breach of contract or implied term of mutual trust and confidence had occurred to justify resignation. The employer’s conduct, though slow in some respects, was not unlawful or contractually repudiatory.

The court also considered the impact of recent legislative amendments and European case law but concluded these did not materially alter the outcome given the Appellant’s pre-operative status and the exceptional workplace considerations.

Holding and Implications

The court DISMISSED the Appellant’s appeal.

The decision confirms that, in the context of workplace sanitary facilities, employers may lawfully require employees to use facilities consistent with their legal sex or the sex reasonably believed by the employer, especially when workplace health and safety regulations mandate separation. The ruling highlights the complexity of balancing individual rights with workplace practicalities and the importance of reasonable steps to prevent discrimination and harassment. No new legal precedent was established beyond affirming the reasonableness of the employer’s approach in these exceptional circumstances. The direct effect is that the Appellant’s claims for discrimination and unfair dismissal fail, and the employer’s conduct is upheld as lawful and reasonable.