In the recent well publicised case of Forstater v CGD Europe and others, the EAT held that ‘gender-critical’ beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010.
Factual background
Maya Forstater (“F”) was a researcher, writer and adviser on sustainable development, and she was contracted by CDGE, a not-for-profit think tank, under consultancy agreements as a “visiting fellow”.
F engaged in a number of debates on social media about gender identity issues where she made a number of statements in opposition to the UK government’s proposed changes to the Gender Recognition Act 2004 (“GRA”). F voiced her beliefs that, while a person can identify as another sex and ask people to go along with it, and can change their sex under the GRA, this does not change their actual sex.
In doing so, F made certain remarks which some trans people found offensive, leading to some of her colleagues making complaints alleging that her views were transphobic. Following an investigation, her visiting fellowship was not renewed after it had expired in 2018.
As a result, F pursued an Employment Tribunal claim alleging that her gender-critical views constituted a protected ‘philosophical belief’ under section 10 of the Equality Act 2010 and that she was discriminated against because of them on the basis that her contract was not renewed.
Legal test
In order for F’s beliefs to qualify as a protected philosophical belief under s.10 Equality Act 2010, they had to satisfy the five criteria set out by the EAT in Grainger plc and ors v Nicholson (Brief 890) (the Grainger Test):
- the belief must be genuinely held;
- it must be a belief and not an opinion or viewpoint based on the present state of information available;
- it must be a belief as to a weighty and substantial aspect of human life and behaviour;
- it must attain a certain level of cogency, seriousness, cohesion and importance; and
- it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others
Employment Tribunal
Following a preliminary hearing, the Tribunal concluded that F’s beliefs did not amount to a philosophical belief that qualified for protection under the Equality Act 2010 as they did not satisfy the fifth limb of the Grainger Test.
The Tribunal noted that, even paying due regard to an individual’s qualified right to freedom of expression, people cannot expect their beliefs to be protected if their core belief involves violating others’ dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Of particular concern to the Tribunal was that, because of her belief, F “would refer to a person by the sex she considered appropriate even if it violated their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment.”
F appealed to the EAT.
The Appeal
In its judgment, the EAT acknowledged that F’s belief was offensive to some and that it had the potential to cause harassment of trans people in some circumstances.
However, the EAT found that the Tribunal had been wrong to assume that F’s belief meant that she would always ‘misgender’ trans people, irrespective of circumstances, and that there was evidence that her position was more nuanced than that.
In applying the fifth part of the Grainger Test, the EAT commented that it was “only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.”
As such, the EAT held that F’s belief did satisfy the fifth limb of the Grainger Test; that it was a protected philosophical belief under s.10 of the Equality Act 2010; and subsequently upheld her appeal.
That said, the EAT made it clear that in reaching its decision, they were not seeking to express a view on whether trans people should be afforded greater legal protection, nor were they seeking to make any comment on either side of the trans gender debate. This was purely an appeal to determine whether the Tribunal erred in law in reaching the conclusion that F’s philosophical belief had failed the Grainger Test.
The claim was remitted to a freshly constituted Employment Tribunal to consider F’s claims of direct and indirect discrimination, victimisation and harassment.
The tribunal found that F had suffered less favourable treatment in that her fellowship had not been renewed. The key issue was the reason why F’s fellowship had not been renewed and the tribunal held that the way in which F manifested her gender critical beliefs had had a significant influence on this decision. It was not necessary to construct a hypothetical comparator as this would be a less straightforward route to making a finding as to the reason for the complained of act.
The tribunal went on to consider whether F had manifested her beliefs in a manner to which objection could reasonably be taken, adopting the expressions "objectively offensive", "objectively unreasonable" and "objectively inappropriate" to refer to this test. Ultimately it found that taken both individually and overall, F’s manifestations of her belief were not objectively offensive or unreasonable and her claim of direct discrimination was therefore upheld.
F’s victimisation claim was also upheld, specifically in regard to CGD’s decision to remove F’s profile from their website, which they were unable to provide an explanation for. The timing of the removal led the tribunal to conclude that that this detriment had occurred because of the Claimant’s protected act of co-operating with The Sunday Times, who were writing an article on her case.
The findings of direct discrimination in relation to termination of the fellowship meant that the complaints of harassment and indirect discrimination in relation to the same facts did not arise for decision.
Conclusions
Clearly this is an important decision for both employers and employees, not only because of its impact on the debate over trans rights and the rights of those with gender critical views, but also because of its potential wider impact on the definition of a philosophical belief under the Equality Act 2010
With regards to the debate over trans rights and the rights of those with gender critical views, evidently, this finding means that those with gender critical views may argue that their beliefs are protected under the Equality Act 2010. Organisations will need to ensure that any stance that they have taken on the issue of trans rights does not give rise to potential discrimination claims, ensuring that the rights of trans persons and those who hold a belief in gender identity are respected.
Looking more widely, the EAT has made clear that the freedom of belief, pluralism, tolerance, broadmindedness and freedom of expression are cornerstones of a liberal democracy, and that freedom of belief in this context includes the freedom to be wrong and the freedom to believe things that others might find shocking or even offensive.
The EAT’s judgment clarifies that all but the most extreme beliefs may be worthy of respect in a democratic society, and therefore may amount to protected beliefs under the Equality Act 2010, save in circumstances where the beliefs involve the gravest form of hate speech which incites violence or seeks to destroy the Convention rights and freedoms of others.
In future cases, the EAT has indicated that it hopes that less time and effort will be spent analysing whether or not a belief is protected and that there will be greater focus on whether or not a person has been discriminated against because of that belief. However, this is a developing area of law and the cases in this area are invariably fact-specific, meaning that employees cannot assume that these cases represent a green light to make public their support for controversial viewpoints without giving thought to the impact that this may have on colleagues in the workplace. Consideration will be given to the employee’s conduct and the manifestation of beliefs as well as the belief behind the conduct. Further, simply because an individual’s belief may be protected, it does not automatically follow that there has been discrimination unless it is established that they have been subject to some form of discrimination because of that belief.
For employers, this decision is a stark reminder to think carefully before taking any action against an employee who expresses a view or belief which others may find shocking or offensive. If employers are looking to promote an EDI agenda which encourages the recruitment of colleagues from a wide range of backgrounds, then it has to do so on the basis that those colleagues can be expected to have a wide range of differing beliefs, some of which will be protected even though they may cause friction and clash with the strongly held views of their colleagues.
That said, the judgment does not mean those individuals who hold such beliefs can offend others with impunity, and it does not limit the rights of others not to be subject to discrimination or harassment as laid out by the Equality Act 2010. We expect there will be further cases arising out of competing beliefs of employees particularly on such hotly debated matters as transgenderism, but if an employer can show their policies have a legitimate aim, and that they acted reasonably and considered alternatives in coming to any decision, this will stand them in good stead.
Practical Tips
Workplace culture is complex in practice. It is important to set clear expectations by having clear policies and procedures, regular reminders and training, and by ensuring that leadership teams are leading by example.
Employers should take care to avoid the trap of disciplining an employee for their beliefs rather than the inappropriate manifestation of those beliefs by taking time to analyse the situation and identify the specific alleged misconduct or behaviour which may call into question continuing employment.
It should be recognised in particular that social media comments may be nuanced. Employers may need to distinguish between reasoned comment that one may disagree with and offensive or unacceptable postings which are incompatible with the business’ values.
Our award-winning Employment team is experienced at advising on discrimination issues. Please contact Joseph Shelston if you would like to find out more about how we can help you.
This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
