Dyspraxic Worker Who Accidentally Misgendered Her Colleague Wins Disability Discrimination Claim

In Ms K Sylvester v The University of Manchester and Others, a dyspraxic worker has succeeded with her disability discrimination claim after accidentally misgendering a colleague. Despite knowing of her condition, the University failed to consider its impacts during its investigation following the incident.

In our latest article, we examine exactly what happened before discussing the employment tribunal’s judgment. We then establish the steps others can take should they face workplace discrimination due to a disability.

If you believe you’ve faced disability discrimination at work and want expert legal help, contact Redmans Solicitors today. As employment specialists, we can assess your case, answer your questions, and discuss your options going forward. We can also determine your eligibility to claim compensation and guide those eligible through each stage of the process.

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The Facts in Ms K Sylvester v The University of Manchester and Others

Background to the Disability Discrimination Claim

Ms K Sylvester (“the Claimant”) began working as an e-learning support officer for the University of Manchester (“the Third Respondent”) in December 2018, before she was promoted to a learning technologist two years later. She has dyspraxia and disclosed her condition to the Third Respondent in January 2019, leading to various adjustments.

In the early months of 2023, three white individuals were appointed to two positions at the Third Respondent. These appointments were made without a competitive process, and the Claimant believed that the individuals weren’t suitable for the roles. She also felt that two non-white individuals, who weren’t given the opportunity, would have been better equipped.

As such, on 3 February, the Claimant raised these concerns with Mr Stuart Phillpson (“the First Respondent”), who held some management control over her. However, during the proceedings, the First Respondent disputed much of the content of the discussion. He asserted that the dyspraxic worker never raised how the appointments “disadvantaged BAME” individuals.

Dyspraxic Worker Accidentally Misgenders Trans Colleague

One of the three individuals appointed, referred only to as “CD” during the proceedings, is transgender, having transitioned from a woman to a man sometime around 2021/2022. 

Unfortunately, on 16 February 2023, the Claimant misgendered CD in front of several colleagues. When she was corrected, she immediately apologised for her mistake but advised that she might make the same mistake again. CD was later found crying and wouldn’t be consoled by the dyspraxic worker.

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Later that day, the First Respondent was informed of what had happened and subsequently told the Claimant not to contact the e-learning support assistants (including CD) until further notice. He then arranged to meet with the Third Respondent’s “lead people partner,” Mr Martin Banks (“the Second Respondent”), the following morning.

Disciplinary Procedures Recommended

On 17 February, the meeting between the First and Second Respondents took place. The Claimant was subsequently told not to use the main office, ensuring that she didn’t come into contact with CD.

The First and Second Respondents then held various meetings with CD, during which he stated that he wanted the matter to proceed in line with the Third Respondent’s Dignity at Work policy, leading to a formal investigation.

Yet, without any real justification, the investigation was delayed by four weeks. This left the Claimant working in isolation, impacting her well-being, and causing her to see her GP about stress on 2 March.

By 20 March, the Claimant was invited to an investigation meeting, scheduled for a week later. During the meeting, the dyspraxic worker attempted to explain that her condition meant she found it difficult to gender CD correctly and hadn’t been intentionally misgendering him. Unfortunately, she cried during her explanation.

On 30 March, the Claimant was then provided with the investigation report. It stated that she had unlawfully harassed CD, as defined in the Dignity at Work policy. The report recommended that the matter proceed in line with the Third Respondent’s disciplinary procedures. It also advised that she remain in isolation and be moved to another department until the process had been completed.

Appeal Finds Respondent’s Treatment “Disproportionate”

On 11 May, the Claimant appealed the report’s findings. However, it took until 6 September for the appeal hearing to take place. In the meantime, the Claimant alleged that she faced “punitive measures” by the First and Second Respondents, including:

• Being removed as co-lead on a study
• Receiving the lowest score among applicants when applying for a promotion
• Facing questions about her “teaching activities”

When the appeal was eventually heard, it was only partially upheld. The panel concluded that the current measures imposed on the dyspraxic worker were “disproportionate” and required review, and believed the Respondents hadn’t previously given sufficient consideration to the impacts of her condition. However, it also held that, regardless of intent, CD had still been subjected to harassment. The panel ultimately recommended a review of the situation before further formal proceedings were considered.

Employment Tribunal Claim Brought by the Dyspraxic Worker

In mid-November 2023, the Claimant had an unfortunate accident and was hospitalised. She was then on sick leave until April 2024, returning to work only after a period of mediation in September.

While the Claimant admits she likes her new boss and colleagues, she believes her “career and academic intentions have been sabotaged.” She no longer holds management responsibility, is involved in a university pilot study, or has access to the relevant academics for her intended PhD. Notably, she was never subjected to any disciplinary proceedings concerning the misgendering incident following her return.

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Consequently, the Claimant took her case to the employment tribunal, initially presented on 17 January 2024. Among her claims were discrimination arising from disability, indirect disability discrimination, victimisation and harassment.

The Employment Tribunal’s Judgment

Dyspraxic Worker Wins Discrimination Claims

Following the proceedings, the employment tribunal dealt with each claim in turn. With regard to the discrimination arising from disability claim, the tribunal first established that the Respondents had knowledge of the Claimant’s condition at all relevant times.

As such, it then turned to the Respondents’ assertion that dyspraxia didn’t cause the Claimant to misgender CD. However, while the Respondents failed to produce evidence to back up this assertion, the dyspraxic worker offered various literature to support her case.

The tribunal accepted that the Respondents may have felt obligated to undertake an investigation after CD requested proceedings under the Dignity at Work policy. Yet, it disagreed with the report’s findings, stating that the Respondents should have acknowledged the Claimant’s condition.

While the Respondents may have had a legitimate aim in investigating the matter, the way they went about it was found not to be proportionate. The Claimant was isolated from her colleagues for well over a year and removed from a position she coveted, only for the proceedings to be dropped. Since said treatment arose from the misgendering incident, which occurred due to her dyspraxia, the claim of discrimination arising from disability was therefore upheld.

Moving on, the tribunal addressed the indirect disability discrimination claim. This concerned the Respondents’ use of an internal guidance document, which outlined that persistent misgendering of a trans person constituted harassment.

However, while the Respondents applied the guidance consistently, the tribunal highlighted that they should have considered the Claimant’s disability. The dyspraxic worker had already explained how her condition meant it could take her longer to remember things, such as a person’s preferred pronouns, meaning persistent accidental misgendering may occur. Therefore, since the Respondents didn’t consider this, and the policy unfairly disadvantaged the Claimant because of her condition, the indirect disability claim was also upheld.

Remaining Claims Dismissed, Remedy Hearing to Follow

All other claims were subsequently dismissed. Yet, since the Claimant succeeded with her discrimination arising from disability and indirect disability discrimination claims, the case will now proceed to a remedy hearing to determine her compensation.

Employment Rights Breached? What to do Next

If an individual, like the dyspraxic worker, believes they’ve faced disability discrimination, several steps are available to seek justice. Before proceeding, though, it’s recommended to gather any available evidence to support one’s case.

Once evidence has been collected, the first step typically advised is to consider internal dispute resolution avenues. Depending on the circumstances and the severity of the facts involved, this can include having an informal chat with one’s manager or raising a formal grievance. Both steps allow the matter to be resolved informally, avoiding the stress and costs of more formal escalation, but the latter places additional legal obligations on the employer in how they handle the matter.

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If internal avenues fail to provide a satisfactory resolution, though, the next step is usually to initiate Acas early conciliation. This free and independent process is required before most employment tribunal claims can be pursued. It also offers a further chance to resolve the issue informally.

However, as a last resort, a claim can be brought to the employment tribunal. Strict time limits and eligibility criteria must be satisfied to proceed. But if successful at this stage, compensation could be awarded.

Get Help with Redmans

If you’ve faced workplace discrimination because of your disability, contact Redmans Solicitors without delay. Our team of employment specialists is here to help. Following a consultation, we can provide the answers you’re looking for and discuss how you can proceed.

It only takes a moment to get started, simply:

• Call us on 020 3397 3603
• Request a callback via our online form