Chessington World of Adventures Ltd v Reed [1998] ICR 97 (EAT)

In brief

EAT (HHJ Peter Clark presiding), judgment delivered 27 June 1997, dismissing the employer’s appeal and making no order on the cross-appeal. Ms Reed, a rides technician employed since 1987, announced in July 1991 that she intended to undergo gender reassignment and live as a woman; a small group of male colleagues then subjected her to a concerted course of harassment until she went off sick in March 1994, and management knew of it from about February 1992 but took no adequate steps and disciplined no one (transcript pages 1–3). First issue: the EAT held that the Sex Discrimination Act 1975, read consistently with the Equal Treatment Directive as interpreted in P v S, protected her against less favourable treatment on the ground of a declared intention to undergo gender reassignment, and that no male/female comparison was required where the reason for the treatment was sex based (pages 8–11), drawing on Webb v EMO; the biological test for marriage in Corbett v Corbett was distinguished as not needed for the Act (page 10). Second issue: an employer who knows of harassment it can control and takes no adequate steps is directly liable, applying Burton v De Vere Hotels (page 11). Third issue: in the alternative the employer was vicariously liable under s.41(1), having not made out the s.41(3) defence (page 12). Limitation: the tribunal was entitled to extend time as just and equitable under s.76(5) for a course of discrimination over years (pages 12–13). Historic — the protection is now statutory (1999 Regulations, then Equality Act 2010 s.7).

Key provisions

• pp.8–11 (first issue) — The 1975 Act read with the Directive and P v S — no male/female comparator required : Page 10: the EAT accepted that no clear language in the Act excluded the case, and distinguished the marriage test; page 11: "Applying the same reasoning where, as in this case, the reason for the unfavourable treatment is sex based, that is a declared intention to undergo gender reassignment, there is no requirement for a male/female comparison to be made." The Act was interpreted consistently with P v S and the tribunal upheld on the first issue.
• p.10 (Corbett distinguished) — The biological test for marriage did not govern the Act : Page 10, accepting Ms Rose’s distinction: "A biological test is necessary in relation to marriage where heterosexual intercourse plays an essential part." That necessity did not arise in relation to the 1975 Act.
• pp.1–3 (facts found) — Harassment known to management, and no adequate steps taken : Pages 2–3: management knew from about February 1992 that she was experiencing serious difficulties with colleagues; page 3: "No disciplinary action was taken to identify and discipline those responsible for harassing the respondent." The employer was found completely unprepared for any discrimination problem.
• p.11 (second issue) — Direct liability for failing to prevent harassment it could control : Page 11, applying Burton v De Vere Hotels Ltd [1997] ICR 1: "the appellant was aware of the campaign of harassment directed towards the respondent, but took no adequate steps to prevent it, although it was plainly something over which it could exercise control." No ground to interfere with the finding of direct liability.
• p.12 (third issue) — In the alternative, vicarious liability under s.41(1) : Page 12: had direct liability failed, the EAT would have affirmed the result on the ground that the employer was vicariously liable under s.41(1), the tribunal having found permissibly that the s.41(3) defence was not made out.
• pp.12–13 (limitation) — Just and equitable extension for a course of discrimination over years : Pages 12–13: the continuing-act versus separate-acts distinction mattered to the primary limitation period, not to the s.76(5) discretion; "It is well-established in authority that such a discretion is a wide one." The tribunal took relevant factors into account.
• p.13 (disposal) — Disposal — appeal dismissed, no order on the cross-appeal : Page 13: "In these circumstances we shall dismiss the appeal and make no order on the cross-appeal."

When relevant

The history of legal protection for trans people at work: the first domestic application of P v S, before the 1999 Regulations and the Equality Act 2010. Also, for any organisation reviewing how it handles harassment of a trans employee, a worked example of what employer inaction looks like and why it creates liability: knowledge of harassment from early on, no investigation, no discipline, a manager recording discomfort at having her on his staff, and no preparation for a discrimination problem. Cite with its historic status; for the current law use EA2010 (s.7, s.26, s.109) and FWS-UKSC-2025.