The recent spate of cases and press coverage on gender critical beliefs shows how easy it is for the beliefs of one individual to conflict with those of another. This conflict may result in employees being treated less favourably in the workplace because they hold certain beliefs. Or, if strongly held beliefs are openly expressed, it may mean other employees feeling uncomfortable to the point where the behaviour has a negative impact on their dignity at work. All this leads to the risk of potential harassment and discrimination claims against local authorities.
The Grainger criteria
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 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.
Beliefs which are offensive to others can still be 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 under the Equality Act 2010 (EqA 2010).
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. Ms Forstater engaged in debates of this nature on social media and made remarks which some trans people found offensive. Following an investigation her visiting fellowship was not renewed and she brought a claim for discrimination on the grounds of her philosophical belief.
At a preliminary hearing, a tribunal concluded that Ms Forstater's beliefs did not amount to a philosophical belief that qualified for protection, but the EAT upheld her appeal. It concluded that beliefs which are offensive, shocking or even disturbing to others can still be protected and Ms Forstater's gender-critical beliefs, which are widely shared in society (including by some trans persons) and did not seek to destroy the rights of trans persons, did not fall into the category of beliefs excluded from protection by Article 17.
How the beliefs are manifested is an important consideration
Having come to a decision on the validity of Ms Forstater's beliefs, the issue of whether or not she had been discriminated against was remitted by the EAT to a freshly constituted tribunal.
In looking at the reason why CGD decided not to continue Ms Forstater's fellowship, the tribunal found that her tweets and other ways in which she had manifested her gender critical beliefs had had a significant influence on the decision. The question then fell to whether she had manifested her beliefs in an inappropriate manner. The tribunal found that none of the manifestations of Ms Forstater's beliefs, taken individually, were objectively offensive or unreasonable and upheld a number of her discrimination complaints. Interestingly, the tribunal found 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. It also accepted that mocking or satirising an opposing view is part of the "common currency of debate" and should therefore be protected to a certain degree.
Protection of a belief stands apart from the question of discrimination
The EAT recently 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 similarly protected under the EqA 2010.
Mr Mackereth, a Christian doctor, started employment with the DWP as a health and disabilities assessor. This required him to conduct face-to-face assessments with benefits claimants. He explained during his induction training 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 as this required at least 12 months' experience and that it would not be possible to ensure he only assessed non-transgender service users.
Mr Mackereth left the DWP's employment as a result and brought claims for direct discrimination, harassment and indirect discrimination, relying on religion or belief.
The EAT held that the fact that Mr Mackereth's beliefs were "likely to cause offence" did not warrant their exclusion from protection. However, although the EAT found that Mr Mackereth's beliefs were protected under the EqA 2010, it agreed with the tribunal that he had not suffered discrimination as a result. Mr Mackereth was not put under pressure to renounce his beliefs and the DWP was still at the information gathering stage when he decided to leave. The EAT agreed with the tribunal's assessment when looking at the indirect discrimination claim that the DWP was entitled to find that there were particular sensitivities arising from face-to-face interactions between Mr Mackereth and service users. Although the PCP did have a potential impact on him, the tribunal had taken the limited nature of the intrusion on him into consideration; there had been no penalty applied and the DWP had still been seeking to accommodate him when he left his employment.
Well established now that gender critical beliefs are protected
A tribunal has recently held in Bailey v Stonewall and others that a barrister with gender critical philosophical beliefs was discriminated against by her chambers, Garden Court.
Ms Bailey's claims centred around proposed reforms of the Gender Recognition Act 2004 and Stonewall's campaign in favour of gender self-identity, which Ms Bailey opposed.
The tribunal found that Ms Bailey's belief that a woman is defined by her sex and not by her gender (which can be self-identified and may be different to sex) was a protected belief.
The tribunal also held that her belief that gender theory is severely detrimental to women (including that it denies them female-only spaces) and to lesbians was protected. Ms Bailey made it clear in December 2018 in an email to all members of her chambers that she was opposed to Chambers associating with Stonewall through its Diversity Champions' Scheme.
In October 2019, she launched an organisation with others (known as the LGB Alliance) to campaign for LGB rights without the gender theory espoused by Stonewell, and made various tweets in connection with that launch. Stonewall complained about her actions to her chambers, which then publicly tweeted that it would launch an investigation into complaints about Ms Bailey. Garden Court was ultimately held by the tribunal to have directly discriminated against Ms Bailey on the grounds of her protected beliefs. However, her claim that Stonewall had instructed, caused or induced her chambers to discriminate was unsuccessful.
How to manage conflicting beliefs
So, what can local authorities do to safely manage conflicting beliefs in the workplace?
- The first action point will be to put a policy in place prohibiting any behaviour which could amount to unlawful discrimination, including harassment. It should make it clear that the expression of strongly held beliefs on religion, belief or sexuality may have serious consequences.
- Employees should be 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. They should be advised to avoid being outspoken about their beliefs and encouraged to value and respect differences.
- Strongly expressed views on social media can be fertile ground for discrimination claims. It should be made clear to employees that the expression of discriminatory views on any work-related social media is unacceptable and grounds for disciplinary action.
- If any employee feels strongly enough about a colleague's behaviour to raise a concern or make a complaint it should be taken seriously, investigated and dealt with appropriately in accordance with established procedures.
