M Porter Tribunal Member Ms L Brown Tribunal Member Mr T Lithgow Ms K O’Donnell v Represented by Ms R White, Barrister Times Newspapers Ltd — 2019

Ms K O'Donnell was employed by Times Newspapers Ltd from 2004 until her employment ended on 12 January 2018 by reason of redundancy. She brought claims of direct discrimination, harassment and victimisation under the protected characteristic of gender reassignment, together with unfair dismissal. The tribunal heard extensive evidence about her pay, title, duties in the Scottish edition, complaints about trans-related coverage, and the 2017 restructuring of Scottish production.

On the discrimination allegations, the tribunal repeatedly found that the challenged treatment was explained by reasons other than gender reassignment. It accepted the respondents' evidence that early pay and title decisions turned on the claimant's perceived performance at conference, that the alleged remark that she should be "grateful for our tolerance" was not made, and that the alleged 2011 trans-related joke by Keith Blackmore and Ed Gorman did not occur. It also found that the 2014 decision to appoint Lindsay MacIntosh as acting editor was because she was the better candidate, particularly in view of the Scottish independence referendum, and that later rota and seniority issues were errors or reflected the claimant's unique role in the Edinburgh office.

The tribunal was not satisfied that the respondents' journalism on transgender issues established a transphobic culture, or that the claimant's complaints about particular articles showed discriminatory treatment of her. Where the claimant relied on later events such as the Facebook comments in January 2017, the tribunal accepted that the comments were regarded as inappropriate, but found that this view had nothing to do with her transgender status. It therefore dismissed the direct discrimination and harassment claims.

The victimisation claim also failed. The tribunal accepted that some communications, including the 12 August 2014 email to John Witherow and the meetings with Amy Graham in May and July 2016, were capable of amounting to protected acts. It nevertheless found that the detriments alleged by the claimant either did not happen as pleaded or were not caused by those protected acts. On the unfair dismissal claim, the tribunal found that the redundancy was genuine under s.139 ERA 1996 because production work in Edinburgh was being centralised in London to save costs and improve efficiency. It found the selection reasonable, consultation reasonable in the circumstances, and the offer of a Chief Sub Editor role in London a reasonable alternative. No tribunal award was made.