Since 2019 there have been a steady stream of employment tribunal rulings that have considered whether gender critical beliefs count as "philosophical beliefs" worthy of protection under the Equality Act 2010 ("the Act").
Gender critical beliefs, which some equate to transphobic beliefs, include the belief that sex is biological and immutable, and that people cannot change their sex, sex being distinct from gender identity. A number of high profile rulings including Forstater v CGD Europe and others and Mackereth v Department for Work and Pensions have clearly established that gender critical views are protected under the Act.
In Fahmy v Arts Council England, the case arose following a decision by the Council to withdraw a grant that had been made to the LGB Alliance. This was later discussed at a Teams meeting, attended by over 400 people, where the Tribunal found that the claimant's line manager had expressed the opinion that LGB Alliance had 'a history of anti-trans views'. The claimant challenged that position and sought confirmation of the protection the Council gave to those with gender-critical beliefs. Subsequently one of the claimant's colleagues created a petition that was sent to all staff seeking support for a grievance relating to the original grant to the LGB Alliance. This included a spreadsheet where staff could add comments. Some of the comments clearly referred to the claimant and the position she had taken during the Teams meeting, likening her beliefs to bigotry and cancer, and as being "anti-trans, transphobic and offensive". The claimant then raised a complaint under the Council's Dignity at Work policy which was partially upheld. The claimant then made a successful claim to an employment tribunal for harassment, although her victimisation claim was dismissed.
There are a number of things to note from this case. The first is that there was never any argument about whether or not the claimant's beliefs would be protected under the Act. Prior case law, including the cases mentioned above, has established that gender critical views are worthy of protection, and the parties to the case agreed that in advance of the case being heard. Employers should now be aware that these views are protected, even if they do not align with their own beliefs.
Secondly, it is possible for an employer to use the "all reasonable steps defence" to avoid liability for their employees' acts of discrimination, harassment or victimisation. Any such act done in the course of an employee's employment must, under section 109 of the Equality Act 2010, also be treated as being done by the employer, unless the employer can show it has taken all reasonable steps to prevent the act from happening. The Council had attempted to rely on this defence but was unsuccessful. The Tribunal took into account all of the circumstances, including that the Council had taken disciplinary action against a number of employees who had made comments on the petition. However, the organisation's Dignity at Work policy's definition of harassment did not reference "belief", and although the claimant had raised the issue of training in respect of the different positions held on trans-activist and gender critical beliefs in January 2020, the training had not been provided. In light of these failings the tribunal was not satisfied that the Council had taken all reasonable steps to prevent the harassment.
Thirdly, the employment tribunal considered that by expressing his own views in the Teams meeting, the manager had empowered some of the employees to launch the petition and then make the comments that amounted to harassment. While employees are of course entitled to hold their own views, where a member of management is doing so there is always a risk that employees may interpret that as reflecting the views of the business as a whole. It is important that all employees are aware of when and how it is appropriate to express their views.
Given the sensitive and often polarising nature of this issue, it is one that employers find difficult to manage in the workplace. The policy in this case was due to be reviewed 3 years after its introduction - that is a long time in employment law where issues, particularly those relating to discrimination, can routinely make the mainstream news leaving little excuse for being unaware of when updates may be required. It is also of particular importance that appropriate and up to date training is given to all staff, as this should enable them to regulate their own behaviours when it comes to identifying when and how it is appropriate to express privately held views.
