Gender critical beliefs are protected in the workplace
The claimant, Maya Forstater, believes that biological sex is unchangeable and is separate from gender identity. She worked for CGD Europe (CGD) as a Visiting Fellow but, after she expressed her “gender critical” belief on social media and in the office, CGD decided not to renew her Visiting Fellowship and decided against taking her on as an employee.
In June 2021 Ms Forstater successfully established a binding legal precedent that gender critical beliefs were in principle protected by the Equality Act. Following that appeal her case continued at the Employment Tribunal to determine whether she was discriminated against on the basis of her protected belief.
Ms Forstater succeeded with claims of direct discrimination and victimisation on the basis of her gender critical belief, a protected characteristic under the Equality Act 2010.
Ms Forstater brought various discrimination claims against CGD on the basis of her belief. The first step for Ms Forstater was to establish whether her belief was capable of protection under the Equality Act 2010. Just over a year ago, the Employment Appeal Tribunal (EAT) decided that it was. Once Ms Forstater had passed this hurdle, she could proceed with her discrimination claims.
The decision of the Employment Tribunal
Ms Forstater returned to the Employment Tribunal this year to assert that the non-renewal of her Visiting Fellowship by CGD and its decision not to give her an employment contract were acts of discrimination on the grounds of her protected philosophical belief. The Tribunal concluded that CGD had decided not to renew Ms Forstater’s Visiting Fellowship and not to offer her an employment contract because of her belief and its actions were therefore directly discriminatory. The Tribunal also found that CGD had victimised Ms Forstater when it removed her profile as a former Visiting Fellow from its website.
What does this judgment mean for employers?
The Employment Tribunal found that if CGD could not tolerate Ms Forstater’s belief because of the offence it caused others, then the belief was the reason for the decision not to renew the Visiting Fellowship and the decision was therefore directly discriminatory. This is a lesson to employers to tread carefully and to take advice before taking detrimental action against an employee because their beliefs cause offence to others. Such beliefs may be protected under the Equality Act and actions taken because of those beliefs may be discriminatory.
Employers should consider carefully whether any other actions could be taken which would be less intrusive on an employee’s right to hold a belief. In this case, the Employment Tribunal took into account that Ms Forstater had agreed to add a disclaimer to her Twitter profile so that it was clear her beliefs were her own and not CGD’s. She also agreed not to initiate discussions about her gender critical belief in the workplace. The Tribunal found that these steps substantially mitigated the risk of Ms Forstater’s belief causing further concerns.
This case is a timely reminder for employers to review their Equal Opportunities, Anti-Harassment and Bullying and Social Media policies to ensure they are up to date and fit for purpose. An Equal Opportunities policy demonstrates an employer’s commitment to the prevention of discrimination on the basis of all protected characteristics in the workplace. Employers can take action against employees who harass or bully their colleagues and it is advisable to have a suitable Anti-Harassment and Bullying policy in place (it is worth noting that Ms Forstater had not violated CGD’s Anti-Harassment and Bullying policy in this case). Ms Forstater expressed her belief via Twitter and this case therefore highlights the importance of having a Social Media Policy in place setting out the employer’s expectations of its employees’ conduct on social media.
Having policies in place is one thing but employers should also arrange regular and meaningful training for staff to ensure such policies are read and understood. Taking these steps may assist employers to defend future discrimination claims.