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Transgender Discrimination Case Against The Times Thrown Out

An employment tribunal found that the newspaper did not unfairly dismiss or victimise Katherine O’Donnell as a transgender employee.

An employment tribunal found that the newspaper did not unfairly dismiss or victimise Katherine O’Donnell as a transgender employee.

A discrimination case brought against The Times by a former editor who claims she was unfairly sacked because of a transphobic culture at the newspaper has been dismissed.

An employment tribunal in Edinburgh rejected all of ex-Scotland night editor Katherine O’Donnell’s allegations, including that the newspaper operated as a “boys’ club” and that there was a culture of discrimination and dishonesty. 

The panel avoided passing any judgment on The Times‘ coverage of transgender issues, which was the central plank of O’Donnell’s case. She had brought forward a series of witnesses who challenged the newspaper’s approach to the subject, accusing it of running a disproportionate number of articles which, they said, were unbalanced and often inaccurate.

O’Donnell’s lawyer argued that such coverage created a hostile environment for any trans employee. Had she won that point, the case would have had huge ramifications as it would have meant that any publisher would have to take into account the feelings of its staff on any number of issues.

The tribunal concluded, however, that it was “not in a position to make a finding” on whether articles were transphobic. It accepted that the number of articles the newspaper published on the issue was in line with other broadsheet papers and further accepted that it was arguable that they did not represent The Times’ view. Many were presented as opinion pieces relating to matters of legitimate and topical debate.

It also accepted the argument that the Independent Press Standards Organisation (IPSO) watchdog had not upheld any complaints against The Times over its trans coverage and, while IPSO would not investigate allegations of discrimination from groups of people, any individual was free to complain about inaccuracy.

The newspaper’s editor John Witherow, his deputy Emma Tucker, and News UK chief executive Rebekah Brooks had all responded to emails from O’Donnell about specific articles, the tribunal noted. One, by Carol Sarler, was spiked after O’Donnell had raised concerns. A meeting was arranged to discuss coverage after another, by Jeremy Clarkson, appeared in The Sunday Times. Janice Turner, the author of a third piece, was invited to get in touch with O’Donnell and did so by email.

The 57-page ruling made no reference to any of the witnesses – including former employees and transgender media analysts – who gave evidence on behalf of O’Donnell on the atmosphere in the workplace and the newspaper’s coverage of minorities, including Muslims and transgender people. But, the tribunal accepted the testimony of the succession of executives brought in to defend The Times, mentioning most by name in the judgment.

On three particular instances in which O’Donnell has said that she had taken offence, the tribunal believed The Times‘ witness over O’Donnell and concluded that remarks she had complained of had not been made. With regards to one of these instances, it said: “The claimant is a very articulate woman who showed considerable bravery in raising difficult and sensitive issues with management…it [is] incredible that an incident such as this would not have been the cause of a complaint at the relevant time. The claimant eventually raised the issue some four-and-a-half years later.”

O’Donnell, who had claimed unfair dismissal, victimisation, discrimination and harassment, had contended that she had been denied promotions, pay rises, and opportunities for advancement and was eventually made redundant because of her protected transgender status.

The Times countered that it had supported her through her transition and subsequent long absences when suffering from depression and after surgery unrelated to her gender. She had been switched from a five-day week to nine-day fortnight to help with her personal circumstances – she had been based in London, while her family lived in Edinburgh – and the managing editor eventually suggested that she transfer to work from Scotland, keeping her London salary and hours. When she was abused and threatened while walking to the station in Glasgow after her late-night shifts, arrangements were made for her to go by minibus and, when a new office opened in Edinburgh, she moved there.

The tribunal accepted The Times‘ evidence that a promotion from chief sub to night editor had been resisted because her performance in the daily editorial conferences was not up to scratch and that very few journalists received pay rises beyond the annual increase because of general curbs on expenditure. O’Donnell did eventually get the night editor title and more money, but the tribunal accepted that others were preferred on merit when further opportunities arose.

She was put “at risk” of redundancy when the lease on the Edinburgh office was due to expire and invited to return to London to continue producing the Scotland edition from there – reverting to the title “chief sub”, but on the same salary and hours. She declined.

O’Donnell’s lawyer, Robin White, described the redundancy process as a sham to remove “an effective, hard-working, loyal committed transgender employee who did not fit in with The Times‘ agenda of not being in the trans-supportive camp”.

The Times’ lawyer Jane Callan said that, had O’Donnell agreed to transfer back to London, she would still be in employment.

The tribunal found that there were sound business reasons for moving production of the Scottish edition back to London and that the dismissal was neither unfair nor had anything to do with O’Donnell’s protected status.

O’Donnell said that she was disappointed by the ruling and was considering an appeal. The Times welcomed the verdict, saying: “We are pleased this judgment dismisses all the claims made by the claimant and confirms that The Times took reasonable and appropriate decisions and did not show any anti-transgender bias towards its staff.”

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