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20.07.2022

The latest employment tribunal ruling on the controversial issues in the case of Forstater v CGD Europe, has found that the claimant, Ms Forstater, was discriminated against by CGD Europe on the basis of her ‘gender-critical’ beliefs. 

This decision is an important one for employers, as it demonstrates the significant challenges of balancing competing rights of employees in the workplace. Employers face a difficult task when managing employees who express gender-critical beliefs: whilst such beliefs have been found to qualify as protected philosophical beliefs under the Equality Act, these need to be balanced against the rights of transgender persons.

The facts 

The claimant worked as a researcher for CGD Europe, a not-for-profit think tank. She had an active social media presence, in particular on Twitter and a personal blog – both of which predated her involvement with CGD.

The claimant holds the belief that “sex is real, important, immutable and not to be conflated with gender identity”.  In tribunal evidence she stated, “I have made clear that I have used the word ‘woman’ to mean adult female. It is impossible for a male to become female. It is possible to undergo a social transition. Anyone who believes a male can become female and give birth, that is a delusion.” To use a short-hand expression, the claimant has ‘gender-critical’ beliefs. 

From 2015, the claimant was engaged by CGD under various consultancy agreements and worked as a visiting fellow. In 2018, she started posting tweets about sex and gender, including comments opposing the Government’s proposed changes to the Gender Recognition Act (which would make it easier for a transgender person to obtain a gender recognition certificate). Some of the claimant’s posts, and also a campaigning document she brought into the office, expressed concerns about the impact of this proposal, in particular on ‘female rights’.

Various colleagues complained that the claimant’s conduct was transphobic and posed a reputational risk to CGD.  CGD asked the claimant to add a disclaimer to her online posts (which she did), making clear that her comments were her own, not those of CGD. She also agreed not to discuss her views in the workplace, unless specifically invited by a colleague to do so.  

In 2019, following various internal emails and discussions, CGD decided not to offer the claimant an employment contract or renew her visiting fellowship. The claimant brought various claims in the employment tribunal alleging CGD had acted on the grounds of her philosophical beliefs, which were protected under the Equality Act.  

Are gender critical-beliefs protected under the Equality Act?

The first question that arose in the Forstater litigation was whether the claimant’s gender-critical beliefs qualified for protection as a philosophical belief (and therefore a ‘protected characteristic’) under the Equality Act. The employment tribunal took the view that they did not, however this decision was reversed by the employment appeal tribunal (EAT) in June 2021. As part of its assessment, the EAT considered the guidance in the earlier case of Grainger plc v Nicholson as to the factors (known as the ‘Grainger critieria’) which are relevant when deciding whether a belief qualifies as a philosophical belief. These include, for example, that the belief must: be genuinely held; be related to a weighty and substantial aspect of human life; and attain a certain level of cogency, seriousness, cohesion and importance. The fifth condition is that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Following the EAT’s decision that the claimant’s beliefs did meet the Grainger criteria and qualify for protection, the case went back to another employment tribunal to decide whether CGD had actually breached the claimant’s rights on the basis of her protected beliefs.

The employment tribunal decision

On 6 July 2022, the tribunal ruled that CGD’s decision not to offer the claimant an employment contract and not to renew her visiting fellowship was direct discrimination because of her protected beliefs. (The successful direct discrimination claims were pleaded alternatively as harassment, but the claimant could not have won both.)  The tribunal also found that CGD’s decision to remove the claimant’s profile from their website was victimisation.  

The tribunal judgment runs to over 80 pages and includes detailed technical arguments. In summary, the tribunal found that the claimant had suffered less favourable treatment when CGD decided not to renew her fellowship and not to offer her an employment contract and that the tweets and other ways in which she manifested her gender critical beliefs had significantly influenced CGD’s decisions. The question was therefore whether the claimant had manifested her beliefs in an inappropriate manner or whether CGD had treated the mere statement of her protected belief as inappropriate or unreasonable. Although the panel was split on some issues, ultimately the finding of the tribunal was that the claimant’s manifestations of her beliefs were not objectively offensive or unreasonable. 

What does this mean for employers?

It is worth noting that the latest ruling in the Forstater case is only a tribunal decision so other tribunals are not obliged to follow it. The judgment may also be appealed.

However, the practical implications of the judgment for employers are significant. We consider some of those here, together with points that have arisen from other cases dealing with gender-critical beliefs: 

Beliefs may be protected even where others find them offensive 

Gender-critical beliefs are capable of being protected philosophical beliefs under the Equality Act, even if others find those beliefs shocking or offensive. According to the courts, beliefs will be found to be ‘worthy of respect in a democratic society’ unless they are so extreme that they are ‘akin to Nazism or totalitarianism’, or otherwise espouse ‘violence and hatred in the gravest of forms’. Taking action against an employee simply because they hold a protected belief which runs counter to the culture or ethos of their organisation can be direct discrimination. Where an employee is treated less favourably not because of their belief but because of the way they manifested the belief, that will generally be regarded as indirect rather than direct discrimination, but their treatment may be capable of being justified.

There are limits on individuals’ rights of expression of their beliefs 

There are limits on the rights of individuals to express their protected beliefs in the workplace. For example, employers can take action if, following investigation, there is evidence that an employee who holds gender-critical beliefs has said or done something in the expression of their beliefs that is inappropriate and/or amounts to bullying or harassment. When managing employees with gender-critical beliefs, it is advisable to consider whether something said or done by the employee could reasonably be seen to create an intimidating, degrading or offensive environment for others, rather than focusing on the belief itself.  For example, employers are likely to be able to request that employees stop proactively airing their views in the workplace if they are causing offence or intimidating their colleagues. Indeed, one of the reasons why CGD was found to have discriminated against Ms Forstater was that she had not violated CGD’s bullying or harassment policy and she agreed to keep her views out of the workplace, unless specifically invited to discuss them by a colleague.

In addition, if the actions of an employee with gender-critical beliefs contravene a company policy which sets out specific expectations regarding the treatment of transgender colleagues or third parties, the employer will usually be able to take action to enforce that policy (provided it is has been properly communicated). Policies which limit manifestations of belief can amount to indirect discrimination, but may justifiable if they are a proportionate means of achieving a legitimate aim.  

The EAT’s recent judgment in the case of Mackereth v Department for Work and Pensions illustrates the above point. In this case, a Christian doctor refused (based on his protected beliefs about the immutability of gender) to address and refer to transgender service users using their preferred titles and pronouns when conducting assessments for disability-related benefits. Although the EAT acknowledged that Dr Mackereth’s beliefs were protected under the Equality Act, it found that the DWP had not discriminated against him by requiring him to address and refer to its service users using their preferred titles and pronouns, as this requirement was clearly outlined in the DWP policies with which all employees were obliged to comply. The DWP’s defence to Dr Mackereth’s claim was strengthened by the fact that it had a clear policy on how transgender service users should be treated and could evidence why the policy had been adopted.  Staff at the DWP followed a reasonable procedure, took time to listen to Dr Mackereth’s views, gave him an opportunity to reflect on his position and explored alternative solutions to avoid a ‘clash of rights’; however in the end no alternatives proved to be workable. This case demonstrates the benefits for employers of having thorough and effective policies on which they can act.   

Expression of views outside the workplace 

Forstater and other cases also raise questions about the extent to which employers can impose limits on employees who express their gender-critical views outside of the workplace, for example on social media. The case of Higgs v Farmor’s School is a relevant case currently progressing through the courts. Ms Higgs was disciplined and dismissed from her employment in a school after she re-shared articles on Facebook and added her own comments of a homophobic and transphobic nature (criticising the introduction of teaching about LGBT relationships in primary schools). In contrast to Forstater, the employment tribunal’s Higgs judgment in 2019 ruled in favour of the school; however Ms Higgs has appealed and the EAT hearing is awaited. 

In any dispute of this kind, the specific facts and context will be crucial: it will be necessary to consider exactly what has been said by the employee, whether it is offensive, whether the employee referenced their employer, what the employee’s role is and the content and enforceability of any company policies. If, however, an employee expresses a protected belief as part of a public debate, making it clear that this is their personal view and not that of their employer (as in Forstater), taking any kind of action against that employee becomes more difficult.  

Balancing act 

Clearly, managing gender-critical views alongside the rights of transgender and non-binary persons in the workplace potentially gives rise to complex issues for employers and there are no easy answers.  If faced with a situation where one employee’s beliefs conflict with the beliefs or rights of another, employers must undertake a careful balancing exercise, and it is important to avoid a heavy-handed or knee-jerk response.  Tribunals will always consider the specific circumstances of each situation, and employers should do the same. 

Finally, it is worth emphasising that, while the Forstater case does of course have implications for transgender and non-binary employees, the judgment in no way condones discrimination or harassment of any kind. 

How we can help

If you are a Make UK member, you can speak to your regular adviser for guidance and support on managing manifestations of belief in the workplace, including issues around the expression of gender-critical beliefs. We can also assist you with training and guidance on how best to support transgender and non-binary members of staff.  Please contact sbroughton@makeuk.org for further information.

If you are not a member, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email enquiries@makeuk.org.

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