United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS D ROSE (of Counsel) Instructed By: Equal Opportunities Commission Principal Legal Officer Arndale House Arndale Centre Manchester M4 3EQ
For the Respondent	MR P ROSE (of Counsel) Instructed By: Messrs Eversheds Solicitors 1 Royal Standard Place Nottingham NG1 6FZ


 


MR JUSTICE LINDSAY (PRESIDENT):

1. Sarah Croft, the applicant below and appellant before us, is a pre-operative transsexual. Under our current domestic law she is male; she was male at birth and remains so biologically and genitally. She is, though, an instance of gender dysphoria and has embarked on the "real life test" of dressing and generally "presenting" as a woman. In accordance with that wish she wanted to use the female toilet facilities which the employer provided. Other female employees objected. The employer, at any rate for the time being (that proving to be a longer spell than Ms Croft wished to tolerate) refused her permission to do so. Whilst Ms Croft had other complaints, that was her chief one. Ultimately she claimed to have been constructively and unfairly dismissed and presented proceedings for that and for discrimination.
2. It is a measure of the complications of modern employment and employment law that her plight took five days to examine below and took over 2 days before us. The Tribunal at Leicester under the Chairmanship of Mr J.A. Threlfell dismissed her claim for direct discrimination against the employer and her claim for unfair dismissal. Her claim in respect of discrimination against fellow-employees, and hence against the employer constructively or vicariously, failed only because the employer was held to have taken such steps to prevent that as were reasonably practicable.
3. Ms Croft, who appears before us, as she had below, by Miss Dinah Rose, appeals. The employer, also represented below as before us, appears by Mr Paul Rose Q.C.
4. Before we turn to the facts we mention two points. Firstly, the applicant has twice changed the name by which she wished to be known and, as we have mentioned, now presents in a gender other than one congruent with her biological sex; at various stages we will refer to the applicant as "he" or "she" and will speak of matters "his" or "hers". Nothing is to be read into such descriptions other than that they may be a convenient way of referring to the applicant at the time concerned. Equally, but for very different reasons, the employer has changed its name or identity in the course of the relevant chronology. The originating application was against the Royal Mail. The Tribunal's decision describes the employer-respondent as the Post Office. There was then a change to Consignia plc. For convenience we shall refer to the Employer as the Post Office.
5. The other matter we mention at the outset is the remarkable rarity of the problem which faced employer and employee. Whilst we would not wish this statistic to be taken to be reliable generally, the Post Office, a nationwide employer with some 160,000 employees at the time, prior to Ms Croft's case knew of only 4 other cases of transsexualism amongst its employees, a rate of .0025%. Moreover, whilst it is not unknown for transsexuals, embarking on the "real life test" and wishing to escape the prurient interest which the press, particularly the tabloid press, has in such matters, to undertake the test in surroundings where, for example, she had not been known as male, Ms Croft remained at the same workplace where she had been known for over 10 years as a man. Whilst such considerations do not necessarily affect whether or not there had been discrimination or any breach of contract, they need to be borne in mind when one is to consider whether an employer, moving in such exceptional circumstances, has moved as adroitly as law may require.

(1) The facts.

6. In view of the wide-ranging issues, which we will come on to, we have not found it practicable briefly to summarise the facts, which we shall accordingly set out at some length. The facts as found by the Tribunal are set out with a care and comprehensiveness to which we wish to pay tribute. They are these.
7. The applicant began employment with the Post Office in March 1987. He was then known as Nicholas Simpson. He was then or became a married man with 3 children. He drove a van to and from the Leicester Sorting Centre and, less often, to and from another such Centre. In around August 1997 his doubts about his gender led him to see his GP and then a Consultant Psychiatrist. On 19th January 1998 - after more than 10 years employment as a man - he was diagnosed as being a case of gender dysphoria. He began taking feminising hormones (and, it would seem, anti-male ones). In April 1998 he proposed to adopt a female rôle and spoke to his then line manager. On 2nd July 1998 the applicant attended the works canteen in female dress, although changing to male dress for work. She had a meeting with her new line manager who told her it was inappropriate to do as she had done but he arranged a meeting with the Operations Manager for the 20th July. She then proposed to attend for work dressed as a female from 24th August 1998.
8. The meeting on 20th July took place. The Tribunal held:-

"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 the Leicester Mail Centre] 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 trans-sexualism. 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 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."

9. There was, unfortunately, some mishandling of this psychiatrist's letter, no copy of which was amongst the Post Office's records and which failed to inform the Post Office's later action as it might have done had it been more widely seen.
10. The Tribunal continued:-

"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 [an erstwhile line manager of hers whom she had found very approachable] the probability 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."

11. If it is appropriate to consider that agreement in contractual terms, it would seem to us that an agreement "for the time being" to use the disabled toilet was an agreement to use it so long as the employment subsisted or until something else was agreed, whichever was the shorter. However, in the context of employment, where so much varies from time to time, we would expect such agreement to be terminable on reasonable notice by either side.
12. After the meeting of 20th July 1998 the Post Office's records were altered to record the applicant as "Nikki Simpson". After a week away from work she returned in a female rôle on 24th August 1998. The Tribunal held:-

"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 respondent's harassment policy says that this covers "any behaviour which is unwanted by the recipient related to ....... sex, sexual orientation, family status or any other personal characteristics or behaviour which affects the dignity of any individual ....... ."

13. On her return to work some colleagues complied with the change better than others. The Tribunal continued:-

"The issue, however, which was easily the most important, as far as the applicant was concerned, was thus 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 re-assignment. 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 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 that she was not a disabled person and because its entrance was very public."

14. Pausing there, although that was the applicant's perception, there was no finding that her walking the longer distance to the disabled toilet exposed her in fact to more prejudicial comments or actual notice than would have done the shorter walk to the female (or male) toilet closest to the loading bay, nor, of course, is there anything unfeminine about use of a disabled toilet, which in any event is fairly open to others than those who are ostensibly and physically disabled.
15. On 2nd October 1998 the applicant wrote to her line manager indicating she would be happy to change her name completely to avoid confusion. She accepted it would not be practical for her to use the male toilets, given her appearance, and said she wished to use the female ones 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.
16. After a week's sickness leave the applicant had an interview with Mr Capewell on 20th October. The Tribunal held:-

"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 guidance. 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 other cases."

17. Pausing there, firstly, we take it that Ms Croft's not wishing to use the harassment policy involved her not lodging any grievance about specific instances of offensive behaviour or, more generally, of discrimination at that stage. Secondly, we see it as entirely reasonable for a nation-wide employer such as the Post Office to seek to find how other cases had been treated. As so much of discrimination consists of the comparative exercise of how others have been or would be treated, a large employer will properly try to establish both consistency and good practice. The information the Post Office gathered was that, amongst its 160,000 employees, only 4 other cases of transsexuals seeking gender re-assignment during employment had occurred and that others in the applicant's position had not been permitted to use female toilets.
18. It is important to bear in mind that at this stage - October 1998 - and, indeed, until March 1999, the Post Office had not been clearly told whether or not the applicant had had any (and if so what) operations related to gender re-assignment. They knew of the diagnosis of gender dysphoria and of the taking of hormone treatment but they had not been told whether she had or had not taken any further steps on the route to femininity. They had no reason to assume that at law she was no longer male, although there was room for doubt.
19. The Tribunal made findings as to the advice the local Post Office received. They held as follows:-

"The area personnel department obtained internal legal advice, which was that, if the applicant had completed gender re-assignment 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 [the Post Office's area personnel manager covering the Midlands, but not based in Leicester] became more involved and he took the view that the applicant's current status should be established through a medical enquiry, to see principally whether the applicant had or had not undergone surgery. If she had not, there would be time to deal with any negative attitudes. He was not aware of the letter from the applicant's doctor, which covered most of the points, as it was not on the file and Ms Berry, who had seen the letter, was no longer involved."

The reference to the doctor's letter is, we take it, to the letter from the psychiatrist that had been disclosed at the meeting of 20th July 1998 but had thereafter been mishandled (innocently, as it would seem; certainly there is no finding suggesting otherwise).

20. At the beginning of November 1998 the applicant decided to change her name to Sarah Croft, as the Tribunal said "to differentiate her position and stop people calling her Nick". The workforce were told they should now address her as Sarah Croft.
21. On 17th November 1998 Mr Jones wrote to the applicant to indicate, in effect, that the case had been passed to him but that she was still able to discuss matters with the Leicester senior team. As the Tribunal held:-

"He said "I can quite clearly state that Royal Mail will be prepared to allow you to use the female toilet facilities, however how we move to this and when we move to this is a key issue. We have to consider two main issues, your own views and preferences, but also the views and preferences of our female employees at Royal Mail, Leicester". Mr Jones pointed out that it takes time for people to adapt and change and that any move viewed as precipatative would only cause further friction and concern, which would be more likely to cause an adverse reaction. He said that he needed information and had asked the occupational health service to seek the applicant's consent to approach her medical advisers. He pointed out that any information would be confidential to the occupational health service. Once Mr Jones had that information, he would be able to discuss the issues with the applicant and the Leicester management team. He said that if the applicant had any specific issues or concerns she should contact him."

22. Time was then lost and complications were introduced in a series of misunderstandings and perhaps well-meaning but misguided reactions. Firstly, the applicant did not reply to Mr Jones. Instead she spoke to her Union representative, who spoke to Mr de Marco. The message, as it got back to the applicant, was that the Post Office wanted confirmation from her GP about her condition (presumably meaning whether she had had surgery or not or at least including that) and (presumably, if she had not had it) whether she had committed to having it at some future date. Mr Jones' request had not been quite so direct as that. He no doubt had recognised he was moving in an area of great personal sensitivity. He had asked for information to be given to the occupational health service. Secondly, the applicant mistakenly thought that the Post Office was seeking access to her medical records. The Tribunal said:-

"She felt they were personal and as the respondent had already received a letter from Doctor Reid, [i.e. the mishandled letter from the psychiatrist disclosed on 20th July 1998] they needed no more information. However, she did not say so."

Had she said so it would have been likely to have emerged that Mr Jones had not seen the psychiatrist's letter.

23. On 15th December 1998 Mr Jones, having had no reply, reminded the applicant that he had not received any consent from her. He asked her to return it so that they could move forward with her issues. He repeated that the information would be confidential to the occupational health service.
24. A further 3 weeks then elapsed until, on 5th January 1999, the applicant complained to Mr Gaunt, the line manager, that it was unfair for access to her records to be required as no one else's had been. Mr Gaunt, on reading Mr Jones' letter of 17th November, said to her that in his view other people had been asked for such access (presumably meaning access to such information as Mr Jones' letter had referred to). The applicant said she was considering leaving the Post Office "because she was getting bad treatment, which was not happening elsewhere, where she had been fully accepted". She then complained to Mr Gaunt of two specific incidents that, unsurprisingly, she found offensive, one of which involved the defacing of a letter to her, querying whether the description on the envelope of "Post Woman" was fitting. She was, however, unwilling (it was not said unable) to name names. The Tribunal said:-

"In evidence to us she told us that she felt that if she gave names and disciplinary action was taken against an individual, that was likely to cause her more problems at work rather than less. The action Mr Gaunt took was to re-issue the harassment policy at the next team brief and to indicate that defacing letters was unacceptable."

25. On 8th January 1999 the applicant was specifically told by Mr De Marco that if she used the female toilets it would be directly contrary to an order and that Mr Gaunt would be instructed to suspend her. We add, because it is material to one of Ms Croft's complaints, that her evidence that Mr de Marco had said that if she gave him access to her medical records, he would allow her to use the female toilets was not accepted, but was considered unlikely, by the Tribunal.
26. On 14th January Mr Jones wrote again to remind the applicant he awaited her consent form. He added that in the meantime the Post Office would not accede to her request to use the ladies' toilets.
27. On 15th January the applicant indicated, on meeting Mr Capewell, that she still thought (mistakenly) that the Post Office wanted sight of her medical records, which she was reluctant to allow, as she was concerned about who would have access and that it would be expensive. Mr Jones' letter, then of nearly 2 months before, had not asked for sight of her records and had promised confidentiality. Where her concern about expense came from is unexplained. Speaking to Mr Capewell:-

"She suggested that a letter from her consultant outlining the reasons why it was necessary for her to use the female toilets might satisfy the respondents."

Mr Capewell's note of the meeting, addressed to Mr de Marco and then sent on to Mr Jones, included:-

"Sarah stated that she was determined to reach a compromise with you where both parties were happy with the way forward. She asked me to ensure that this message was passed to you."

28. Mr Jones, having seen the note, wrote to Ms Croft on 22nd January. He did not deal with the idea of a Consultant's letter. That seems unsurprising; either the letter would not have told him that which he wished the Post Office to know but had deliberately not aspired directly to asking - had she had surgery and, if not, was it likely to be imminent and when - or it would have been more intrusive than the medical man-to-medical man confidential report which his letter of 17th November had suggested. He still did not know of the psychiatrist's letter disclosed on 20th July 1998. He explained, said the Tribunal:-

"..... that, contrary to what the applicant thought, the respondents did not want to see her medical records, but wanted a report from her medical adviser and would pay the fee for that. He suggested that this would enable the position to move forward. He invited the applicant to raise any issues or concerns with him."

29. In the meantime, on 15th January 1999 Ms Croft had made a specific complaint about the conduct of fellow employees. When she walked past they would make comments or start singing the theme-song from "The Full Monty", - "You sexy thing". This time the 3 culprits were identified by her. Their manager reminded them of the seriousness of harassment and they were asked to stop. The Tribunal held:-

"They did stop and the applicant had no further problems from those three people."

30. On 26th January Ms Croft went off sick with stress and depression. A doctor's certificate was provided. Although this was not predicted at the time, she remained off sick until 21st May 1999 save for 2 days in April. She wrote on 27th January to say people still referred to her as "he, him, mate, etc". Her position, she said, was constantly being brought to the notice of the customers on her collection round; fellow employees were negative and the management's attitude that people needed time to get used to her position "was not acceptable and was wearing thin".
31. On 4th February she rang Mr Capewell to say that she no longer wanted to use the disabled toilet facilities as she felt this was an obstacle to her gaining acceptance as a female. That may have been her subjective appraisal, but there is no finding that anyone found her less acceptable as a female by reason of her use of the disabled toilet, nor any finding that anyone outside the few in management already described knew that she was for the time being, by agreement, confined to use of that toilet or had noticed that that was what she used. She told Mr Capewell (as the Tribunal held):-

".... If she could not use the female toilets, she would start using the male toilets. The applicant confirmed to us that she did not want to use the male toilets, but [had] said this only in an attempt to force the Post Office to permit her to use the female toilets."

We will need to return to the threat to use the male toilets but at this point note only that Ms Croft's request was not now to be satisfied by the use of the one specific designated female toilet, the one closest to the loading bay, but was a request to use "the female toilets". The compromising tone of the 15th January had gone.

32. The next day Mr Gaunt told her that she had to continue to use the disabled toilets, as agreed, and that any breach of the agreement would result in him having no option but to suspend her from duty. Looking at Mr Gaunt's response in contractual terms, it seems to us justified. Even if Ms Croft's call of 4th February could be regarded as notice of termination of the agreement of 20th July that it would be the disabled toilet that would be used, reasonable notice would have been needed to have been given and, even if given on the 4th, could not have expired by 5th February.
33. News of Ms Croft's then-current attitude was passed to Mr Jones. He tried to contact her by telephone but was unable to do so. The Tribunal said only that he wrote saying that he had tried to contact her but had been unable to do so but they plainly found him a reliable witness and would have surely mentioned it if they had disbelieved the assertion in his letter that he had tried to contact her. On 10th February Mr Jones wrote to Ms Croft. The Tribunal said:-

"He dealt with the various points the applicant had raised and in particular suggested that forcing her change in status on people could be counter-productive and she should be patient. He said that whilst the applicant's appearance would help the transition, other assurance would be needed and he repeated that the respondents had consistently said that they needed a medical consent to take the matter further, although he now understood the applicant was prepared to provide it."

How he had come to understand that is not explained. The Tribunal continued:-

"He then commented about the applicant's threat to disobey the management instruction in respect of using the female toilets and that the applicant's absence record was now at a serious level, which would merit critical review."

He pointed out to her that she had not had any contact with him except for one phone call and that he was fully prepared to discuss the matter by phone or by a visit to resolve the situation.

34. On 17th February Ms Croft supplied the medical consent form. This did not lead to immediate contact between the medical men; by 30th March Ms Croft's doctor had not been approached, as she then pointed out in a letter to Mr Jones. The delay is not explained in the Tribunal's findings. She wanted to return to work and expected, on return, to be allowed to use the female toilets. She gave Mr Jones a copy of a code of practice as to discrimination on the ground of trans-sexualism produced by the body "Press for Change".
35. Dr Searle, the Post Office's occupational health doctor, wrote to Ms Croft's Consultant and to her GP. He did not hear from the Consultant but her GP confirmed on 11th March 1999 that she had undergone femininising hormone treatment, was making good progress, was suffering from depression (which the GP said was understandable considering her major life style change) but had not yet undergone gender re-assignment surgery but that it would be undertaken in the relatively near future. Dr Searle reported to Post Office management of the gender dysphoria, confirming the hormone treatment and adding that Ms Croft had not undergone surgery but would do so in the relatively near future. There was no finding that Mr Jones had specifically asked Dr Searle as to whether Ms Croft had had surgery nor as to what Dr Searle might recommend as to lavatory use. The Tribunal added, of Dr Searle:-

"He expressed his opinion that it would be appropriate at the present time for her to continue using the disabled toilet, rather than the male or female toilets. There is no evidence that Mr Jones had asked for Dr Searle's opinion other than on medical issues. He was prepared to allow the applicant to use the female toilets at an earlier stage than suggested by Dr Searle."

36. On 24th March 1999, after receiving Dr Searle's letter, Mr Jones wrote to Ms Croft saying that the time was not right for her to use the female facilities and that she should continue to use the disabled one as her progress was not sufficiently advanced. He referred to the Press for Change code as being controversial and to a revised draft submitted to the Department of Education and Employment, still not a statutory code. He confirmed the Post Office was still intending to progress with her case.
37. On 26th March Ms Croft said she was going to return to work on 12th April and that she intended to use the toilet facilities "appropriate for my gender".
38. On 7th April Mr Jones replied, she was not given permission to use the female toilets but that the arrangements in place had to continue. It was made clear that if she insisted on using the female toilets "I feel we will suspend you on no pay, for clear insubordination". The Tribunal continued:-

"He repeated that it was necessary to achieve a successful conclusion to spend considerable time winning over the employees to accept the change and that a situation of conflict must not be caused. He said that the respondent would support the applicant's aim to be accepted in her new status. He said that he had asked the respondent's legal services to ascertain the validity of the Code of Practice produced by Press for Change, and once again said that he wanted the applicant to be patient and work with the respondent."

Had Mr Jones been disingenuous in the letter we feel sure the Tribunal would have said so; they do not.

39. Press for Change offered their services to Mr Jones, who declined them for the moment but indicated that the offer would be reconsidered as the issues were pursued. He was seeking advice from the Post Office's legal services department and headquarters.
40. For 2 days in April Ms Croft returned to work but went off again ill.
41. On 5th May 1999 an associate of Mr Jones told Ms Croft that the Post Office's position remained the same and that she would have to use the gender-neutral toilets. The Tribunal did not accept her evidence that she was told she would not be able to use the female toilets till after her operation.
42. On 21st May 1999 she returned to work. The team briefing included a further reminder about harassment policy.
43. On 24th May Ms Croft's Solicitors wrote to Mr Jones. They requested that a firm date should be given from which she would be able to use the female toilets, by not later than the end of June. They suggested that, inter alia, a representative of Press for Change, an experienced psychiatrist or some other experienced individual should address the employees. The letter asked for a substantive reply within 7 days.
44. Mr Jones replied on 3rd June. The Tribunal held:-

".... he confirmed that it had been agreed that the applicant would be allowed to use the female facilities once a suitable period of communication and consultation with the workforce had been undertaken. It was not possible to put a fixed timescale on that, but arrangements had been made to discuss the issues with the applicant."

That was, presumably, a reference to Mr Jones' repeated invitations to Ms Croft that they could meet to discuss matters between them. There is no finding of any specific arrangements having been made. The Tribunal continued:-

"The respondent took the view that if they needed to employ specialist advice, either Press for Change or a Consultant Psychiatrist, then they would do so. At the time the respondent's headquarters was in the process of finding an independent expert adviser. At that time, as the applicant had recently returned to work, the respondent was putting in hand a communication programme, although nothing had yet been discussed with the applicant. It was considering allowing the applicant to use the female toilets at some stage before final surgery, which Mr Jones preliminarily considered as in about 6 months' time."

45. On 3rd June Ms Croft decided to leave the Post Office. She went for a job interview elsewhere on 4th June and on the same day handed in a letter of resignation previously drafted for her by her Solicitors. It asserted she had been discriminated against both by some colleagues and by management. She continued:-

"I have accepted that the conduct of the Royal Mail has given rise to a breach of contract. I regard this breach of the implied relationship of mutual trust and confidence as being so serious that I have decided to accept this breach as sufficient to terminate my contract of employment with you. In short I regard myself as having been constructively dismissed by you. In the circumstances I regard my contract as terminated with immediate effect."

She warned she would launch proceedings "unless realistic proposals to compensate me" were received within 14 days.

46. On 2nd July 1999 Ms Croft presented an IT1 for Unfair Dismissal and Sexual Discrimination. She identified her Solicitors as her representatives. Apart from a mention of some colleagues having called her "Nick" before her name change, the discrimination she then claimed to have suffered related only to toilet facilities.
47. In August 1999 the Post Office put in a terse IT3.
48. The Tribunal found that a number of female employees had expressed concern to their Union representative about sharing facilities with the applicant. Also, when a move by Ms Croft to another part of the building was considered in early 1999, the manager of that area had spoken to some of her female staff, who indicated that they would be unhappy sharing facilities with the applicant, particularly changing facilities. The Tribunal added:-

"The respondents do have a number of female employees from ethnic minorities, who had specific objections to sharing facilities with the applicant, who they had known as a man and who was still anatomically male."

49. Of a possible solution that was canvassed in evidence with Mrs Parker, a Post Office manager who gave evidence, the Tribunal said:-

"Mrs Parker confirmed that she felt that if the applicant had been restricted to a specific female toilet that would probably have been a satisfactory solution. Although that had been raised by the Applicant at the outset, it had never been progressed and Mr Jones was not even aware that it had been suggested before be became involved. He had little detail of the layout of the Leicester premises."

50. The Post Office put in an amended Notice of Appearance in March 2000 and at some later stage Ms Croft amended her IT1 to include a complaint that she had been unduly pressured into consenting to the giving of confidential medical information. The Tribunal do not record granting leave for this amendment but it must have been given, albeit at a late stage.
51. The hearing at Leicester took 5 days, in May 2000. As we have mentioned Miss and Mr Rose were instructed below as they were also before us. The Tribunal's unanimous decision was sent to the parties on 5th June 2000. The claim against the Post Office in respect of its own direct acts and omissions failed, as did the claim for unfair dismissal. The Tribunal held Ms Croft had not been dismissed. As for the claim in respect of the behaviour of her fellow-employees, the Tribunal said:-

"The applicant was discriminated against on the grounds of her sex by employees of the respondent, but there is no liability for those acts against the respondent as the respondent had taken such steps as were reasonably practicable to prevent the acts of discrimination."

52. On 14th July 2000 the Employment Appeal Tribunal received Ms Croft's Notice of Appeal.
53. As an employer the Post Office was required to deal with a problem of exceptional rarity, one to which its Human Resource Department and legal advisers would have struggled to find parallels and authoritative guidance. It had to steer between the Scylla of not paying due respect to one employee's wishes, without intrusive enquiry into deeply personal matters, and the Charybdis of not respecting the wishes of other employees, wishes not, as it seems to us, fairly describable as prejudiced but rather being a manifestation of widely-held views as to a certain form of privacy or propriety. The Post Office may have been at times slower than Ms Croft wished but that there was a belief that it could, by its proposed actions over time, solve the problem to the Applicant's satisfaction cannot be denied on the facts which the Tribunal found. Ms Croft, too, was at points slow and it is hard to resist the thought that if only she had responded earlier to Mr Jones' repeated invitations to meet and discuss the issues there would have been the compromise which she had once spoken of as what she was determined to reach. The solution of the use of the one particular designated female toilet might, for example, have re-emerged. Of Mr Jones, the Tribunal said that he was:-

".... attacked repeatedly and at great length by Miss Rose who tried to portray him not only as ignorant of trans-sexuality but as phobic toward transsexuals. In successfully withstanding that battering Mr Jones satisfied us fully that he was doing his best to resolve a difficult situation both for the applicant and the rest of the workforce .... None of the points put forward to us by Miss Rose lead us to believe that there were anti-transsexual feelings in Mr Jones or in other people at a management level in the respondent, although they undoubtedly saw the applicant's transition as a problem."

(2) Workplace provisions

54. Before we turn to other argument we need to mention the Workplace Directive (89/654/EEC) of 30th November 1989. This seems not to have been referred to below but was cited to us without any objection that it had not been raised before. Article 8 requires there to be consultation with workers and/or their representative on matters covered by the Directive, including its Annexes. Annex I para 18.1.3 requires provision of separate changing rooms or separate use of changing rooms for men and women. It is implicit in the Tribunal's findings that some women used the toilet facilities for changing. Para 18.3 provides:-

"Provision must be made for separate lavatories or separate use of lavatories for men and women"

- see also Annex II para 13.2.3. The Workplace Directive was carried into domestic law by the Workplace (Health, Safety and Welfare) Regulations 1992, S.I. 1992/3004, also not cited below. Regulation 20 requires that suitable and sufficient sanitary conveniences shall be provide at readily accessible places. Regulation 20 (2) explains that conveniences shall not be regarded as "suitable" within Regulation 20 unless, inter alia:-

"(c) Separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside."

Regulation 21 required washing facilities to be separate in a corresponding way but not where the washing was merely of hands, forearms and face.

55. The terms "men" and "women" were not defined in either the Directive or the Regulations but, as it seems to us, in 1989 and 1992 the references would be to those at law or believed by the employer to be male and female respectively. Moreover, it seems to us inherently improbable that the terms "men" and "women" should then be referring to the gender a person might choose for himself or herself as that interpretation would require contemplation of the shower rooms, similarly provided to be separate, nonetheless possibly having amongst their users, in the women's facilities, persons still wholly anatomically male and, in the men's, persons surgically adapted as far as possible to resemble females. Further, if the Directive was contemplating "men" or "women" as including persons asserting a gender other than congruent with their sex at law or that sex believed by the employer to be the appropriate sex at law, one could reasonably have expected provision to be made to exclude, for example, temporary masquerades, by referring to the steps taken to adopt the discongruent gender and as to its intended duration.
56. If that is right then a woman finding a person at law male using the facilities separately assigned for use by women might not be asserting only a right to a conventional form of privacy or propriety but also a breach of Directive or Regulation. In the light of these workplace provisions ordinary good practice requires, as it seems to us, that an employer is to be expected to require those who are, or who are believed by him to be, at law males to use only the mens' facilities and those who are at law or who are believed by him to be females to use only the womens'. In the massively preponderant number of cases the employer will have no reason to distinguish between sex and gender. If such papers as a person discloses identify him as male and he "presents" as male in the sense of dressing and appearing as a male, the employer can properly treat him as at law male as he will have no reason to think otherwise of him. So also in the corresponding case of someone presenting as a woman. The employer cannot be expected to test to verify whether those presenting as of one sex truly are of it when he has no reason for real doubt. Instead the employer will treat his employees and require them to behave consistently with what has to be taken to be their putative sex at law.
57. But there will be a tiny proportion where a person "presents" as of one sex but is known by the employer to be of the other or where the employer has good reason to believe there is a discongruity between the legal sex and the chosen gender. What is the employer to do? This, of course, is the problem in Ms Croft's case.

(3) Discrimination as to the use of toilet facilities.

58. Miss Rose argues that Ms Croft was forbidden to use either the male or the female toilets, on pain of disciplinary action, and that that was less favourable treatment than that afforded to other employees.
59. We do not accept there was any such prohibition on the use of the male toilets as there was no true request or intent by Ms Croft to use them. The only finding as to such a prohibition was in the context of a threat that if she could not use the female then she would use the male ones. But that was entirely disingenuous. She was dressing and appearing by then (4th February 1999) as a female, Sarah Croft; she was engaged in a "real life test" to see how presenting as a female suited her. She did not wish (as the Tribunal held) to use the male toilets, had agreed to use the gender-neutral disabled facilities and had not given notice to revoke that agreement. She had accepted it was not practical for her to use the male facilities, on 2nd October 1998. From the Post Office point of view, it would presumably have been only too happy, if she had abandoned presenting as a woman and had reverted to a position of no discongruity between sex and gender, not only to allow but to require her to use the male facilities.
60. If, on that score, one leaves aside the prohibition on the use of the male facilities, the question posed by Miss Rose becomes whether it was less favourable treatment of Ms Croft to deny her the use of the female facilities. As it seems to us it was not; she was being treated, consistently with the workplace provisions, in accordance with what was, in the employer's belief, to be taken to be her sex at law, just as were all other employees, both those believed male and those believed female. On that ground her treatment, so far as it consisted of a prohibition of the use of the female facilities, was not less favourable but represented a treatment akin to that of all others. So far as her treatment consisted of a requirement that she should use the gender-neutral disabled facilities, that was an alternative to no facilities being open to be chosen for her use at all. The employer provided male facilities for her in her capacity as someone in law and believed to be male. He could, not unfavourably, bar her use of the female facilities as she was known to him not at law to be, nor was believed to be, female. He had thus no need, under the workplace provisions, to provide any further or other facilities for her. Common decency, though, suggests that he should provide something for her. He suggested the use of the gender-neutral disabled facilities. She agreed. We fail to see how the employer is to be held to be acting unlawfully when he provides something by way of adequate sanitary facilities in a context in which it has become impossible for him to treat a complainant as are all his other employees, when there is strictly no workplace requirement for him to do anything further and where allowing her to use the female facilities would breach the separateness which the workplace provisions require.
61. By this route (not, of course, that taken by the Tribunal, who did not have the workplace provisions in front of them) we have so far come to the same destination as, and detect no error of law in the conclusion of, the Tribunal. We see it as the only conclusion they could properly arrive at.
62. There are, though, complications. As from 1st May 1999 the Sex Discrimination Act 1975 was amended to make express provision for discrimination on the grounds of gender re-assignment. It is arguable whether the Act covered such discrimination before that amendment. We are content to accept Miss Rose's response that that argument makes no difference as it is accepted (belatedly, before us) by the Post Office that it is an emanation of the State and that the Equal Treatment Directive 76/207/EEC is directly effective. It has been held by the ECJ that the scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex but is also such as to apply to discrimination arising from the gender re-assignment of the person concerned. The Directive, so held the ECJ, precluded dismissal of a transsexual for a reason related to gender re-assignment - see P. -v- S. And Another [1996] ICR 795 at p. 814, paragraphs 20 and 24. But there are material differences between that case and this; there was a plain dismissal by the employer, the complainant had already had minor re-assignment surgery when notice was given and had completed it before the dismissal took effect and, more significantly in our view, there was not there any tension between Directives equivalent to the one we see to arise when the Workplace Directive and its implications are introduced. We are unconvinced that reliance by Ms Croft on the direct enforceability of the Equal Treatment Directive (before or after 1st May 1999) entitles her to any relief.
63. After 1st May 1999 Ms Croft is able to rely on the amended form of the 1975 Act. She attended at her workplace for only some 13 days after 1st May 1999 and before giving notice on 4th June. Under section 2A of the 1975 Act a person discriminates against another if he treats that other:-

".... less favourably than he treats or would treat other persons, and does so on the ground that [that other] intends to undergo, is undergoing or has undergone gender re-assignment."

"Gender re-assignment" is defined in section 82. By 1st May the Post Office knew that Ms Croft, if not actually undergoing, was at least intending to undergo a re-assignment falling within the definition, which expressly includes any part of the process. The Act as amended, by its reference to the treatment of others, invites a comparative process. We see the force, in general, of Miss Rose's submission that the comparison is to be with the treatment of those, of either sex, who are not transsexuals. It might, still dealing in general, be necessary to qualify that by reference to the treatment of other employees who are not known to the employer to be transsexual in the sense of intending to undergo, undergoing as or having undergone gender re-assignment. But we do not see the general case as applicable in the particular circumstances of the use of toilet facilities and the effect, as we have understood it, of the Workplace Directive and regulations. Under those provisions, as we have sought to explain, the employer is both entitled and required to assign persons to the use of such facilities as are consistent with what the employer knows or can take to be the legal sex of the person concerned - what we have called the putative sex - and to preserve the separateness which those provisions require he is able to bar the use of toilet facilities dedicated to the other sex. The bar put on Ms Croft's use of toilet facilities dedicated to a sex other than the legal sex to which the Post Office knew her to belong was not a treatment, in respect of toilet facilities, other than would have been afforded to anyone else where there was a known discongruity between the way a person was presenting and his or her legal or putative sex. It was not less favourable treatment within section 2A and, if it were to be so regarded, section 2A would, in our view, need, in the particular circumstances of the applicability of the Workplace Directive, to be disapplied.

(4) Discrimination as to the requirement of medical information

64. It is not entirely clear how the case on this subject was put below. In its paragraph 1 the Tribunal recognised the pleaded complaints as including requests having been made for confidential medical information when Ms Croft was not off sick (or claiming to disabled), pressuring her to supply that information and making her use of the female toilet facilities conditional upon its provision. Paragraph 2 describes Miss Rose as having identified the toilets issue as fundamental but with a further limited complaint in this regard - paragraph 2 (e) - "[The applicant] was pressured to consent to confidential and intimate information being sought from her doctor". The Tribunal seems to have understood the complaint as being one of a contractual kind - see their paragraph 59 - and we, too, fail to see it was something discriminatory and related only to transsexualism. She, a man, so far as the employer had good reason to believe her to be, herself claimed to be suffering from gender dysphoria and sought certain exceptional consequences as flowing from that medical condition and the treatment she was undergoing on account of it. There is no reason to think that in such a case an employer's request for medical information is only proper if the exceptional consequence sought by the employee is his or her justified full sickness absence or some adjustment for disability. It is not uncommon for requests well short of sickness absence, as, for example, to changes in places of work or hours of work or as to the extent of mobility required of the employee, to be made on medical grounds which, if the employer is to be invited to respond to, he is to be entitled to have adequately verified. We cannot see that the Post Office discriminated against Ms Croft in requiring the information it did in the form (medical man to medical man, by report) which it did. It was acting as an employer might reasonably do in many like situations, unrelated to gender re-assignment, where some change or exception to ordinary practice was being requested on medical grounds.
65. As for Ms Croft being put under pressure in this regard, the Tribunal made no such findings, nor as to the use of the female lavatories having been made conditional on the provision of medical information. Ms Croft's evidence on this point was not accepted - see the findings of the Tribunal as at 8th January 1999 as set out above.

(5) Discrimination by fellow-employees.

66. The IT1 was presented, as we have noted, on 2nd July 1999. It was not, in broad terms, competent to complain of specific events on the part of fellow-employees more than 3 months old - section 76 of the 1975 Act. No extension under section 76 (5) has been mentioned to us. Looking to the period after 2nd April 1999 and down to her leaving employment, although no specific findings were made by the Tribunal as to who said what and when, the Tribunal held that comments that Ms Croft was still male and that "hurtful remarks" were made during the last fortnight of her employment. Under English law she was, of course, still male - Bellinger -v- Bellinger [2001] EWCA Civ 1140. There is no record by the Tribunal of complaint by her as to any particular acts between her return to work on 21st May and the termination on 4th June, nor on the 2 days in April on which she worked. The Tribunal held that there was no evidence to suggest that anyone in management either was responsible for unpleasant remarks made to Ms Croft or was prepared to condone or tolerate such conduct. In its defence the Post Office relied upon section 41 (3) of the Act which provides

"41. (3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

We do not read that as meaning, so long as a complainant can identify some such reasonably practicable step that was not taken, that the defence will necessarily fail. There will often be cases when an employer, to prevent recurrence, will devise a sequential plan, recognising, as Mr Jones believed here, that the taking of more radical steps may serve to worsen the position and hence beginning with less potentially disruptive steps and planning to move to other ones in sequence only should the initial ones fail. If such a sequential plan is truly and reasonably embarked upon and pursued, yet the employment is terminated by the employee before the sequence is worked through, there would be no justice, as it seems to us, in the employee, whose termination had brought the sequence to a halt, being able to assert that the later steps, prospectively to be taken, had not been taken, that they were reasonably practicable as the subsection required and hence that the defence necessarily failed. The subsection conspicuously does not say "all such steps as were reasonably practicable ....".

67. In Ms Croft's case, when she had identified the culprits, steps had been taken and they had worked in preventing recurrence from those culprits - see the events of 15th January 1999 supra. Mr Jones was of the view that "forcing her change in status on people could be counter-productive" - his letter of 10th February 1999. "Any move viewed as precipitative", he had written on 17th November 1998, "would only cause friction and concern, which would be more likely to cause an adverse reaction". There is no finding suggesting that this was not a genuinely held belief by a man held to have been doing his best to resolve a difficult situation. Ms Croft herself acknowledged that the taking of disciplinary action against offenders "was likely to cause more problems at work rather than less". It cannot be said, therefore, that a sequential approach was unreasonable. There had been repeated team briefings to staff emphasising the Post Office's harassment policy which, were it followed, would have cut out remarks of the very kind of which Ms Croft complained - unwanted behaviour related to sex or other personal characteristics. The latest of such briefings was on 21st May 1999, the very day she returned to work. Beyond that (and there is no finding that management knew unpleasant remarks continued nonetheless to be made after her return to work) Mr Jones proposed employing specialist advice if needed (either Press for Change or a Consultant Psychiatrist) and a "communication programme". In response to Ms Croft's Solicitor's peremptory request of 24th May 1999 Mr Jones did not rule out staff meetings and addresses from Press for Change and he had told Press for Change back on 28th April 1999 that he would reconsider their offer to assist "as we pursue the issues". He had told the Solicitors in his letter of 23rd June that the Personnel Manager at Leicester had been asked to prepare a communications programme to discuss with Ms Croft. Ms Croft's termination letter put paid to the sequence he had in mind.
68. The Tribunal held that no evidence was received that any employees were under any misapprehension that harassment of Ms Croft was unacceptable to the Post Office and also that the "education programme" which the applicant's side proposed would have had no more than a marginal effect on the employee-culprits. The Chairman's Notes of Evidence includes some answers that could have led to a finding that the effect could have been more than marginal but it cannot be said that the Tribunal, which saw and heard the witnesses, could not properly have determined that fact as it did. The Tribunal held the section 41 (3) defence to have been made good; we see no error of law in that. Even if that were wrong, we would have grave doubts as to the proportionality of further process now in respect of as yet unidentified incidents in 1999, uncomplained to management at the time, unmentioned in the original IT1 (which only complained, in this respect, of her fellow-employees earlier calling her "Nick") and quite outside the "fundamental issue" which was so fully explored by the Tribunal.

(6) Unfair Dismissal.

69. Ms Croft asserted a breach of the implied term of trust and confidence. It is an unusual term in that it is only breached by acts or omissions which seriously damage or destroy the necessary trust and confidence. Both sides are expected to absorb lesser blows. Ms Croft relied on the Post Office's discriminatory handling of the toilets problem (as she asserted it was) and their attitude to medical information as the causes of the serious damage she needed to assert.
70. As for the toilets problem, as we have indicated, we find no error of law in the Tribunal's conclusion that there was no unlawful discrimination. In point of contract there was an agreement from 20th July 1998, notice to revoke which was not given until 4th February 1999 and reasonable notice needed to expire thereafter until the agreement could be said to be ineffective. The employer always asserted that ultimately use of the female facilities would be permitted but that time would need to be taken, advice collected, medical information digested, fellow workers assuaged and so on. The problem was one of both exceptional rarity and sensitivity. In their paragraph 58 the Tribunal concluded:-

"... we do not consider that anyone in the applicant's position would have been justified in seeing the respondent's position on the toilet issue as being a breach of contract."

The gravity or otherwise of a suggested breach of the implied term is very much best left to the assessment of the Tribunal as the "industrial jury"; we see no error of law in that conclusion.

71. As for medical information, we have already made some observations on the subject. For our part, we cannot see that there was any breach of contract in the request for the information nor in the way it was dealt with on its receipt such as could be fairly described as being the cause of serious damage to or the destruction of the proper level of trust and confidence. There was, we reiterate, no finding that use of the female toilet was offered as available if but only if the information was given - see the events of 8th January 1999 and 5th May 1999. Ms Croft misled herself on the issue of medical information by misunderstanding the nature of the Post Office's request. Again, an objective view of the gravity of any harm likely to have been done to trust and confidence is best left to the Tribunal. It concluded:-

"We cannot see that the applicant can say that such an issue justified her in believing the respondent was in breach of contract."

The Tribunal a little later concluded:-

"We are satisfied that from the applicant's point of view the overriding issue, which caused her to resign, was that the respondent was not prepared to let her use the female toilets in the immediate future. That was the real reason she resigned and it was not, as such, a breach of contract by the respondent. The decision we make is that the applicant did not resign in response to a breach of contract by the respondent and, therefore, the applicant was not constructively dismissed by the respondent. As she was not dismissed, her claim for unfair dismissal must fail."

We detect no error of law in the Tribunal's conclusions as to contract.

(7) Goodman.

72. On the last afternoon of the hearing before us the ECJ released its judgment in Goodman -v- United Kingdom, since reported at [2002] IRLR 665. Provision was made for us to receive written argument from both sides based upon the case. Both sides have done so. Whilst we see the case as likely to sweep away the domestic position, now rare in Europe, that a person's legal sex remains as was the biological sex at birth despite gender re-assignment surgery, and hence that Goodman will probably ease the resolution of toilet issues where there has been such surgery, we do not see the case as materially assisting, or impeding, Ms Croft on the facts as the Tribunal found them. It is, though, significant that the ECJ time after time is careful to speak not of transsexuals but of post-operative transsexuals, and of the process of gender change as a long and difficult process of transformation - paragraph 78. It is, if anything, a tacit recognition that until surgery is completed there is no transformation and that there will be difficulties for which the law provides no redress in that long and difficult interim.

(8) Conclusion

73. For the reasons we have given we dismiss the appeal.