Just recently, a landmark decision was made by the Tribunal in relation to the protected characteristic of ‘belief’. Maya Forstater (‘MF’) was an employee within the meaning of the Equality Act 2020. She worked for CGD Europe. She held a firm view, ‘gender critical belief’, about gender and sex. Her belief was that biological sex is a material reality and shouldn’t be confused and conflated with gender identity. She posted regularly on this topic on social media. Her posts were erudite and on occasional provocative. Here are some examples;
“I am perfectly happy to use preferred pronouns and accept everyone’s humanity and right to free expression. Transwomen are transwomen. That’s great. Enforcing the dogma that transwomen are women is totalitarian”, “You think? He is a part time cross dresser who mainly goes by the name of Philip. I think the FT were wrong to put him on a list of top female executives and wrong for him to accept the award”.
She also brought campaigning material into the office and stimulated debate. Her employer, which operates from London and Washington DC, fielded many complaints from employees in the US and UK who were keen to express the view that MF’s views did not accord with those of the company and had or were capable of causing offence or being discriminatory. The company took steps. MF was asked to make it clear in her Twitter account that her views were entirely personal and asked not to bring literature to work. She agreed to this. The company then went further and commissioned a report which was critical of MF’s tweets. The company felt compelled to do something more and more robust. So, the decision was made not to offer her a third year as a Visiting Fellow and not to offer full time permanent employment.
Do you see the risk here? There was a direct link between MF’s belief and less favourable treatment. She won her claim for direct discrimination because of her belief. What do you need to keep in mind in situations like this?
Tolerance of heterodox views is absolutely important, “…beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society”. As an employer you cannot dictate what views are held by your employees and what views they can express publicly. In order to begin to embark on any form of censure, you need crystal clear justification which is entirely separate from the belief in question and its legitimate expression.
In other news, more on faith, belief and justification
The Employment Appeal Tribunal has also recently concluded that a policy operated by the DWP compelling its health and disabilities assessors to use the preferred pronouns and mode of address for trans service users when conducting assessments for them was justified in the circumstances of that case. The employee who complained in this case was a doctor and a Christian. His belief was faith based and was a lack of belief in ‘transgenderism’ and ‘gender fluidity’. This is another example of a ‘gender critical belief’ which is now protected as a philosophical belief. He said that he would not agree to the use of preferred pronouns of transgender service users. The EAT decided that the ‘pronouns policy’ was justified, proportionate and lawful: the policy was very specific and went no further than was required and given that a significant proportion of trans service users would be likely to be suffering from mental health conditions, it followed that a failure to follow the policy had a reasonable likelihood of exacerbating those mental health difficulties. It’s time to think about your pronoun policy and whether or not its deployment poses a risk.
