- Is it okay for your staff to express a view on gender rights within the workplace?
Is it okay for your staff to express a view on gender rights within the workplace?
Is it okay for your staff to express a view on gender rights within the workplace?11th June 2021 - Published by Kuits Employment team
In a highly anticipated judgment, the Employment Appeal Tribunal (EAT) decided in the case of Forstater v CGD Europe and others that the Claimant’s belief that sex is biologically immutable, that there are only two sexes, male and female, and that it is not possible to change sex, is capable of protection under the Equality Act 2010.
The Claimant was a visiting fellow at CGD Europe and undertook paid consultancy work on research projects. She is active on social media and regularly posts comments relating to transgender issues. During 2018 the Claimant became concerned about Government proposals to make legal recognition of self-identified gender easier and expressed her beliefs about those issues and her views on the transgender debate generally on her personal Twitter account. Those tweets included comments about the biological gender of a particular individual who identified as ‘gender fluid’ and ‘non-binary’.
Concerns were raised by colleagues about the Claimant’s tweets and it was alleged that they were ‘transphobic’, ‘exclusionary or offensive’ and made them feel uncomfortable. Following an investigation into the Claimant’s conduct she was not offered any further consultancy work and her visiting fellowship was not renewed. In response, the Claimant brought claims in the Employment Tribunal which included allegations of discrimination because of her gender-critical beliefs and/or harassment relating to those beliefs.
The Employment Tribunal as a preliminary matter had to consider whether the Claimant’s beliefs were worthy of protection. It found they were not and the Claimant appealed that decision.
The Equality Act 2010 identifies certain characteristics as ‘protected characteristics’. These include ‘religion or belief’ as well as ‘gender reassignment’.
In the earlier case of Grainger plc & others v Nicholson the EAT had identified 5 criteria to meet for a belief to qualify for protection under the Equality Act. The Tribunal found the Claimant satisfied all but the fifth criterion which was that the belief must be ‘worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. It was that determination which was the subject of this appeal.
The decision on appeal
The EAT disagreed with the Tribunal’s conclusion. Its view was that a philosophical belief would only be excluded from protection if it was the kind of belief akin to ‘Nazism or totalitarianism’. The Claimant’s beliefs, although clearly offensive to some, were widely shared and not seeking to destroy the rights of trans persons. As such, the EAT held her beliefs were worthy of protection under the Equality Act.
The case will now go back to the Employment Tribunal to determine if the Claimant has been discriminated against as alleged.
What does this mean in practice for employers?
The Judgment will no doubt provoke further debate about gender theory and concerns have been expressed that the Judgment may embolden those people who engage in transphobia and the misgendering of trans people.
However, the EAT was at pains to explain that it was not expressing any view on the merits of the transgender debate and that the Judgment ‘does not mean that those with gender–critical beliefs can ‘misgender’ trans persons with impunity’. The prohibitions on discrimination including harassment continue to apply to everyone and trans people continue to be protected against discrimination and harassment by the Equality Act.
For employers, the obligation to provide a safe place of work for trans people continues and you remain potentially liable for any acts of harassment and discrimination committed against trans people in the course of employment regardless of the beliefs of the person responsible for that discriminatory conduct.
However, there is a balance when it comes to freedom of speech including in the workplace. Comments, whilst upsetting for some, may not be unlawful and taking disciplinary or other detrimental action against those who express gender-critical beliefs may result in successful discrimination claims.
For employers grappling with those difficult situations where there is a conflict of beliefs between employees, it is imperative to take advice before any decisions are made.