There has been a spate of cases recently on gender critical beliefs which demonstrate how easy it is for the beliefs of one individual to conflict with those of another, and how important it is for employers to promote an inclusive workplace, even for those whose beliefs may be offensive to others.
The Equality Act 2010 (EqA 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 five 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.
Gender critical belief is protected
Last year the Employment Appeal Tribunal (EAT) held in Forstater v CGD Europe and others that the claimant's gender critical belief was a philosophical belief which qualified for protection.
Ms Forstater was a visiting fellow of a not-for-profit think tank focussing on international development. Her belief is 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 and that a trans woman is not, in reality, a woman. She also believes that, while a person can identify as another sex and can change their legal sex under the Gender Recognition Act 2004, this does not change their actual sex. She engaged in debates of this nature on social media. Following an investigation, her visiting fellowship was not renewed, and she brought a claim for discrimination on the grounds of her philosophical belief.
The EAT noted that freedom of expression is one of the essential foundations of democratic society, and that a belief only needs to satisfy a very modest threshold to be protected under Article 9 of the European Convention on Human Rights (ECHR) (which protects the right to freedom of thought, conscience and belief). The EAT looked at whether a person falls outside the scope of protection under Article 9 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 incites violence or hatred aimed at destroying the Convention rights and freedoms of others. The EAT concluded that Ms Forstater's beliefs did not fall into the category of those excluded from protection by Article 17.
The issue of whether or not she had been discriminated against was remitted to the tribunal. It found that her tweets had had a significant influence on the decision not to continue her fellowship. The tribunal found that none of the manifestations of her beliefs were objectively offensive or unreasonable and that it was not necessarily the case that crossing the line on a single occasion into inappropriate expression would have been sufficient to justify action being taken against Ms Forstater.
Protection of a belief stands apart from the question of discrimination
The EAT held in Mackereth v Department for Work and Pensions and anor that the claimant's belief that a person cannot change their sex/gender at will, and a lack of belief in "transgenderism", were protected under the EqA 2010.
Mr Mackereth, a Christian doctor, started employment with the DWP as a health and disabilities assessor requiring him to conduct face-to-face assessments with benefits claimants. He explained that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users, as required by the DWP's policies. The DWP decided it could not offer him a non-customer facing role and that it would not be possible to ensure he only assessed non-transgender service users. Mr Mackereth left and brought claims for discrimination and harassment.
The tribunal found that Mr Mackereth's beliefs did not satisfy one or more of the Grainger criteria and that, even had they been protected, he had not been less favourably treated. The DWP's provision, criterion or practice (PCP) that assessors had to use service users' preferred pronouns was a necessary and proportionate means of achieving its legitimate aims of ensuring that transgender service users were treated with respect and providing an equal opportunities service.
The EAT held that the fact that his beliefs were "likely to cause offence" did not warrant their exclusion from protection, but agreed that he had not suffered discrimination. Although a belief may be capable of protection, it will not give an individual employee the right to act in a way that conflicts with their employer's legitimate requirements.
Practical measures
In another recent decision, Bailey v Stonewall and others, a barrister with gender critical philosophical beliefs was found to have been discriminated against by her chambers. This is clearly an issue which employers need to be aware of and practical measures include:
- Putting a policy in place prohibiting any behaviour which could amount to unlawful discrimination.
- Telling employees that, although they are entitled to hold their own beliefs, they must be aware that they are not shared by everyone. Advise them to consider whether they need to express their views at work, and to consider how they do so. Employers should also encourage them to value and respect differences.
- Making it clear to employees that the expression of discriminatory views on any work-related social media is unacceptable and grounds for disciplinary action.
- Although employees are entitled to hold their own views, this doesn't mean they can manifest them inappropriately. Any complaints should be taken seriously, investigated and dealt with.
