Baldwin v Brighton and Hove City Council

EAT: Judge Peter Clark, Dr K Mohanty and Miss S M Wilson: 14 December 2006

In the course of his employment with the respondent council the claimant, who was born a female, began to identify as a transsexual, effecting a change of name in December 2002, and subsequently underwent gender reassignment. In December 2002 the temporary post he held ceased to exist due to lack of funding and his appointment was extended to the end of January 2003 to allow him to apply for an alternative post. On 24 January the claimant resigned, complaining amongst other matters that one of the members of the panel appointed to interview candidates for the alternative post was alleged to be transphobic. He made claims of sex discrimination under section 2A of the Sex Discrimination Act 1975, claiming that he had been less favourably treated on the ground of gender reassignment, and of constructive dismissal, claiming amongst other matters that, in permitting a discriminatory work environment and an unfair selection procedure, the employers had breached the implied contractual term of trust and confidence. Dismissing the claim of sex discrimination, the employment tribunal found that when the employers appointed the interview panel member they were unaware the claimant was transsexual and that merely by agreeing to be on the panel the panel member had not "treated" the claimant in any way. The tribunal further held that, in any event, it was not the member's presence on the panel that had caused the claimant to resign but the fact that the alternative post was an inferior one. The tribunal dismissed the claim of constructive unfair dismissal on the ground that the claimant had failed to establish the factual basis of his complaint.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) As a matter of construction, it was not enough, for the purposes of section 2A of the Sex Discrimination Act 1975, that a person "would" treat another person less favourably than an actual or hypothetical comparator; that, accordingly, merely by agreeing to be on the panel, the member was not treating the claimant less favourably and, therefore, did not discriminate against him on the ground of his transsexualism; and, given the employers' lack of knowledge of the claimant's gender reassignment, the claimant was not able to rely on his perception that if he attended the interview he would be less favourably treated by a member whom he believed to be transphobic.

(2) To establish breach of the implied term for the purposes of his claim that he had been constructively dismissed, it was sufficient for the claimant to show conduct by the employers that was likely to seriously undermine the necessary trust and confidence in their relationship. However, since the employers had no knowledge of the claimant's gender reassignment at the relevant time, their conduct in appointing an allegedly transphobic panel member could not be said to be conduct which, objectively considered, was likely to undermine trust and confidence. In any event, the tribunal found that the reason for the claimant's resignation was not the member's presence on the panel but the claimant's view of the new post as a demotion.

Per curiam. The use by Lord Steyn in Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606, 621 of the conjunctive word "and" instead of "or" in his formulation of the implied test—an employer shall not, without reasonable and proper cause, conduct itself in an manner "calculated and likely" to destroy or seriously damage the relationship of trust and confidence between employer and employee—should be regarded as a simple error.

The appeal was dismissed.

Appearances: Simon Harding (Martin Searle, Brighton) for the claimant; Jonathan Swift (Solicitor, Brighton and Hove City Council) for the employers.