Croft v Royal Mail Group Plc (formerly Consignia Plc)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Jonathan Parker,Lord Justice Keene |
| Judgment Date | 18 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1045 |
| Docket Number | Case No: A1/2002/2092 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2003 |
[2003] EWCA Civ 1045
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL (LINDSAY J)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Jonathan Parker and
Lord Justice Keene
Case No: A1/2002/2092
Miss D Rose (instructed by Equal Opportunities Commission) for the Appellant
Mr P Rose QC (instructed by Eversheds, Nottingham) for the Respondent
This is an appeal against a decision of the Employment Appeal Tribunal Mr Justice Lindsay, President, presiding, dismissing an appeal by Ms Sarah Croft ("the applicant") against a decision of an employment tribunal held at Leicester and sent to the parties on 5 June 2000. The unanimous decision of the Employment Tribunal was that the applicant's claim of direct sexual discrimination by her employers Royal Mail Group plc ("the respondents") failed and was dismissed. It was further held that the applicant was discriminated against on the grounds of her sex by employees of the respondents but that there was no liability for those acts in the respondents as they had taken such steps as were reasonably practicable to prevent the acts of discrimination. It was also held that the applicant was not dismissed by the respondents and her claim of unfair dismissal failed and was dismissed.
The facts
The applicant began her employment with the post office in March 1987. She was then a man and had been married and fathered three children. Her work involved driving a mail van to and from the Leicester sorting office and to and from another centre. The appellant had for many years had doubts about her sexuality and she sought medical advice in about August 1997. A medical specialist expressed the opinion in January 1998 that the applicant had long—standing gender dysphoria with awareness of female self-identity from an early age and regular cross-dressing. She was counselled about the difficulties in changing gender role and because she still wished to proceed was prescribed feminising hormones. In about April 1998 the applicant started to suggest to friends and colleagues that she was proposing to change to a female role. On 20 July, there was a meeting attended by the operations manager to discuss the plans to be implemented. It was recorded that the applicant proposed to attend work dressed as a woman from 24 August onwards.
In view of the issues to be decided, it is necessary to quote the findings of the Employment Tribunal, which they have set out with great care, in some detail:
"7. Prior to the meeting on 20 July there was some discussion between various management representatives of the respondent about how to deal with the change. As the applicant had been at work for over 10 years as a male and because the respondent had experience, in another part of the country, of a proposed walk out by other staff in a similar situation, it was considered that the approach should be low key. At the meeting there was the applicant, Mr De Marco [operations manager at Leicester] and Ms Berry, the local personnel manager. The meeting was amicable. Both sides appreciated that this was a difficult position. Prior to the meeting the applicant had obtained a letter from her psychiatrist, which confirmed that she was under his care for gender identity disorder, male to female transsexualism. It confirmed that she would start living and working as a female, which was part of her 'real life test' of living exclusively as a woman to ensure that was the correct way to proceed. It was confirmed that she was taking feminising and anti-male hormones. It was also suggested that she would wish to be addressed by a female name and that it would be important that her colleagues were able to discuss various matters which might arise and the applicant would be pleased to field any questions as best she could."
The Tribunal also found that at that meeting the applicant:
"did suggest that Press for Change, a pressure group for the interests of transsexuals, might be able to assist and that she would be pleased to discuss the position with any of her colleagues. Neither of those proposals were taken up, as the respondent was taking the low-key approach."
The Tribunal continued:
"8. At the meeting it was agreed that the applicant would speak herself to her customers and there was no requirement at that stage for the respondent to become involved. It was agreed that at team briefings employees would be notified of the applicant's change and that the respondent's harassment code would be stressed. Prior to the meeting the applicant had discussed with Mr Capewell [line manager] the possibility of using the disabled toilet. Mr De Marco and Ms Berry thought that was a good idea. At the meeting the applicant suggested that she should use a particular female toilet near the loading dock, but agreed that for the time being she would use the disabled toilet. No timescale for the continued use of the disabled toilet was discussed. The applicant was thinking in terms of one to two months. The respondent had no particular timescale in mind, but considerably longer than that.
9. Following the meeting the respondent's records were altered to show the applicant as female, using the name Nikki Simpson. She had a week away from work and returned on 24 August in her female role. The team briefings for that week included informing the staff that the applicant was now to be treated as a woman and would be called Nikki Simpson. The respondent's harassment policy was stressed in that context to the teams. …"
The Employment Tribunal referred, at paragraph 10, to the issue which caused the problems:
"10. … As expected, when the applicant started working as a woman from 24 August some of her colleagues complied with the change better than others. Some still referred to her as 'he' or 'mate' and 'Nick', whereas others called her 'Nikki' or 'she'. The issue, however, which was easily the most important as far as the applicant was concerned was the use of the toilets. The applicant wanted to live in every way as a woman. In addition that was important to her 'real life test', whereby the applicant needed to show that she was able to and wanted to live as a woman, before taking further steps in relation to gender reassignment. At the respondent's Leicester operation, where the applicant worked, there were a number of male and female toilets. The applicant wanted to use the female toilets, but was prepared to use only a specifically designated female toilet. She wanted to use the toilet nearest to the loading bay. At this point there is a male and a female toilet. The female toilet has a single locking cubicle and an area with a wash basin and mirror, where female employees would often get changed and it incorporated female sanitary arrangements. Informal soundings of the staff had indicated that female staff would not be happy with the applicant, who they had known as a man for many years, using their facility. The disabled toilet and the other male and female toilets were at the other side of the building near to the reception area. To get to the disabled toilet from where the applicant was usually working involved walking across the main sorting area. The entrance to the disabled toilet was in the main reception area. The applicant was unhappy at using the disabled toilet, when it was clear she was not a disabled person and because its entrance was very public.
11. On 2 October 1998, the applicant wrote a letter, which was given to Mr Gaunt [line manager]. The applicant referred to the difficulties with her name and said she would be happy to change her name completely to avoid confusion. She said that she could cite other examples of harassment, but it would serve no useful purpose to do so. She then pointed out that, whilst she accepted it would not be practical for her to use the male facilities given her appearance, she wished to use the female toilets as being appropriate to her recognised gender. She suggested that it should be pointed out in a very low-key manner how hurtful and offensive derisory and thoughtless remarks could be.
12. The applicant was then seen in a counselling interview by Mr Capewell on 20 October (the applicant had a week's sickness in between that and the letter of 2 October). It was explained that the local management was seeking guidance on the issue of the use of toilets and that she would in due course be told the position with written reasons including any policy guidelines. The harassment in the workplace policy was discussed, but the applicant did not wish to make use of that policy. At that point the respondent started to make enquiries of its other regions to see what had happened in similar cases. The respondent which has 160,000 employees has had, including the applicant's, only five cases of transsexuals seeking gender reassignment during their employment. The information obtained suggested that others in the position of the applicant had not been permitted, to use the female toilets elsewhere. The area personnel department obtained internal legal advice, which was that, if the applicant had completed gender reassignment including surgery, it would almost certainly be sexual discrimination to prevent her using the female toilets. If she had not reached that stage, but was currently dressing as a woman, it would be reasonable to use the gender-neutral toilet. It was at this point that Mr Jones [area personnel manager] became more involved and he took the view that the applicant's current status should be established through a medical enquiry, to see...
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