Most employers these days recognise the importance of promoting diversity and inclusion in their workforce. Giving people the same opportunities to progress, teaching them to embrace difference and making it clear that discrimination and harassment of others will not be tolerated are all ways of contributing to a positive work environment.
What happens though when conflicting beliefs come into play? Some individuals may hold beliefs that are offensive to others leaving the employer liable for any resulting harassment and discrimination claims.
Religious and philosophical beliefs
The Equality Act 2010 provides that individuals are protected from discrimination on the grounds of their religious or philosophical beliefs. For a belief to qualify for protection it has to fulfil the criteria set out in Grainger plc and others v Nicholson. It has to be genuinely held; be a belief and not an opinion or viewpoint; be a belief as to a weighty and substantial aspect of human life and behaviour, and attain a certain level of cogency, seriousness, cohesion and importance. Finally it has to be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The recent resignation of Kathlyn Stock, a philosophy professor at Sussex University who expressed her belief that gender identity does not outweigh biological sex, and that people cannot change their biological sex shows how contentious such beliefs can be. Her resignation followed a protest by students asking for her dismissal despite the University's defence of her right to exercise her academic freedom and freedom of speech. Similar issues cropped up in the case of Forstater v CGD Europe and others, which similarly received lots of press attention. Here the Employment Appeal Tribunal (EAT) held that the claimant's gender critical belief was a philosophical belief which qualified for protection under the Equality Act 2010.
Gender critical belief was a "philosophical belief"
The claimant was a visiting fellow of a not-for-profit think tank focussing on international development. She believes that a person's sex is a material reality that should not be conflated with gender or gender identity, that being female is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. She also believes that, while a person can identify as another sex and ask other people to go along with it, and can change their legal sex under the Gender Recognition Act 2004 this does not change their actual sex. She engaged in debates on social media about gender identity issues, and made some remarks which some trans people found offensive. Following an investigation her visiting fellowship was not renewed. She brought a claim for discrimination on the grounds of her philosophical belief.
At a preliminary hearing, a tribunal concluded that the claimant's beliefs did not amount to a philosophical belief that qualified for protection as they did not satisfy one of the criteria set out in Grainger plc and others v Nicholson, namely that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. The EAT upheld the claimant's appeal and remitted the case to a freshly constituted tribunal to determine whether the claimant had suffered discrimination as a result of her belief.
The EAT noted that freedom of expression is one of the essential foundations of democratic society, which cannot exist without pluralism, tolerance and broadmindedness. It concluded that it is not for the court to inquire into the validity of a belief, and a belief only needs to satisfy a very modest threshold to be protected under Article 9 (which protects the right to freedom of thought, conscience and belief).
In coming to its conclusion the EAT looked at whether a person falls outside the scope of protection under Articles 9 and 10 (freedom of expression) by virtue of Article 17 (which prohibits the abuse of Convention rights to engage in any activity aimed at the destruction of the rights and freedoms of others). Case law has held that Article 17 only excludes the "gravest forms of hate speech" which incite violence or hatred aimed at destroying the Convention rights and freedoms of others. The EAT held that only beliefs which are caught by Article 17, such as pursuing totalitarianism, advocating Nazism, or espousing violence and hatred, would fail to qualify under the Grainger criterion and be found to be not worthy of respect in a democratic society. It concluded that beliefs which are offensive, shocking or even disturbing to others, including those which would fall into the less serious category of hate speech, can still be protected.
The claimant's gender-critical beliefs, which were widely shared in society (including by some trans persons), and which did not seek to destroy the rights of trans persons, did not fall into the category of beliefs excluded from protection by Article 17.
In reaching its decision in Forstater, the EAT made it clear that it was not expressing any view of the merits of either side of the transgender debate. The decision does not mean that trans persons do not have protections against discrimination and harassment, nor that those with gender-critical beliefs can "misgender" trans persons with impunity.
Practicalities
The decision in Forstater, and the debate surrounding it, shows how easy it is for the beliefs of one individual to conflict with the beliefs of another. In a workplace context this can mean that people are treated less favourably (for example being overlooked for promotion or excluded from activities) because they hold certain beliefs. However, it can also mean that, if strongly held beliefs are openly expressed, others can feel uncomfortable to the point where the behaviour has a negative impact on their dignity at work. This can lead to conflict and potential harassment claims.
A good starting point is to put a policy in place which prohibits behaviour which could amount to unlawful harassment, and makes it clear that this behaviour will extend to the expression of strongly held beliefs on religion, belief or sexuality. Staff should be given training and told that, although they are fully entitled to hold their own personal beliefs, they need to be aware that they are not shared by everyone. Another thing to be aware of is social media, and staff should be told that the expression of discriminatory views on any work-related social media is unacceptable. Finally, make sure that any complaints are taken seriously and don't be afraid to use your disciplinary policy.
