A Scottish tribunal has held in Adams v Edinburgh Rape Crisis Centre that an employee was discriminated against and constructively dismissed because of her gender-critical beliefs.
The claimant worked for Edinburgh Rape Crisis Centre (ERCC). She believes that biological sex is real, important, immutable and not to be conflated with gender identity, although she is supportive of trans inclusion. ERCC had an occupational requirement of only recruiting women, and a policy of supporting women, trans and non-binary people. A new CEO (MW) was appointed who was a trans woman without a gender recognition certificate. The claimant became concerned, following a number of different incidents, by ERCC's approach to gender identity. These incidents included remarks made by MW on a podcast called 'Guilty Feminist' in which MW stated that those who didn't recognise trans people for who they are were also likely to be racist, ableist and probably misogynist. The claimant was concerned about how, in light of this, MW would interact with those who didn't share her beliefs, and was worried that her own gender critical beliefs would lead to her being labelled transphobic. She was also concerned that emails coming into the centre expressing dissatisfaction with the appointment of MW were treated as hate mail.
One of the claimant's non-binary colleagues subsequently changed to a name which sounded and appeared to be male. The claimant was concerned that service users might query whether this colleague was a man and this was borne out by a later enquiry from a service user. The claimant suggested that they could respond that the colleague was born a woman but now identifies as non-binary in order to factually respond to the enquiry. However, following various internal emails, MW implied that the claimant was transphobic and stated that the claimant had humiliated her non-binary colleague. The claimant was investigated under a subsequent disciplinary process and submitted a grievance during the course of that process which was dismissed. The claimant later resigned.
The tribunal found that the claimant had been unlawfully discriminated against by the ERCC. It found that she had been harassed and that her treatment would have amounted to direct discrimination in addition to this finding. The ERCC had also indirectly discriminated against her by treating the manifestations of her gender-critical beliefs as a disciplinary matter, which could not be objectively justified on the facts. The tribunal noted that MW believed that gender-critical beliefs were inherently hateful and that this influenced the decision to take disciplinary action. The ERCC had breached the implied term of mutual trust and confidence and so the claimant had been constructively dismissed.
Take note: It has been established since the Employment Appeal Tribunal's decision in Forstater v CGD Europe and ors that gender critical beliefs are capable of protection under the EqA 2010. This will be subject to consideration of the way in which such beliefs are "manifested". The decision in Adams highlights the importance of respecting the views of others, and although Forstater found that gender critical beliefs may cause offence and distress to some (typically those holding gender affirmative beliefs), they must be tolerated in a pluralist society. Provided that the manifestation of these beliefs by the employee in question is not objectionable or inappropriate they will be protected under the EqA 2010.
