Under EU law, individuals have the right to freedom of religion and belief and the right to freedom of expression. This means that individuals have the right to hold a belief and to manifest, or express, their belief to others, even where others may find those beliefs offensive. These rights are qualified: they can be limited by law, to meet a legitimate aim, and where it is necessary to limit them in a democratic society.
Gender-critical beliefs, which include the belief that sex is biological, immutable and should not be conflated with gender identity, are (in accordance with the EAT judgment in the case of Forstater v CGD Europe and others) capable of amounting to a protected characteristic because they fall under the umbrella of "philosophical belief" for the purpose of the Equality Act.
The facts
The claimant, Ms Fahmy was employed by the Arts Council England (ACE). She was also an experienced trade union Representative. The claimant holds gender-critical beliefs.
Following the suspension of a grant due to the alleged transphobia of the recipient charity, the Deputy Chief Executive of ACE hosted an internal teams meeting open to all staff, which discussed the grant. During the meeting the Deputy Chief Executive expressed his personal view that the recipient charity had a history of anti-trans activity and that it was a mistake to award the grant. During the meeting, the claimant challenged the view that the recipient charity was anti-trans and asked how gender-critical views were protected at ACE and in the arts. This lead to conflicting comments from other attendees. Following the meeting, the Deputy Chief Executive emailed all staff stating that it was important that ACE treated all colleagues with respect and dignity and indicted his personal solidarity with ACE's trans and non-binary colleagues.
A couple of weeks later, one of the claimant's colleagues emailed all staff referring to a grievance raised about the team meeting and to the homophobic and anti-trans views of members of staff. The email included a petition referred to as "the allies support sheet". Comments were added to the petition by three employees which referred to gender-critical beliefs as "anti-trans", "bigotry", " cancer", "transphobic" and likened it to racism. Following concerns raised by the claimant's line manager and an Area Director, the petition was removed by the respondent, however, this was only after it had been left up for approximately 26 hours.
The claimant made a complaint under the respondent's Dignity at Work policy regarding the team meeting, the colleague's email and petition and the fact that it was allowed to circulate for over 24 hours. This was investigated and the conclusion was that the email and petition were capable of causing offence to persons holding gender-critical beliefs. Disciplinary proceedings against the employees involved took place. However, the investigation found that there was no evidence of a breach by the respondent of their legal obligations.
The claimant then brought a tribunal claim of victimisation and harassment related to religion or belief.
The tribunal dismissed the claims of victimisation. The tribunal criticised the Deputy Chief Executive and said that it was inappropriate for him to provide his personal views and express solidarity with one side of the debate. However, it concluded this did not amount to harassment.
The harassment claim in relation to the colleague's email and petition comments was, however, upheld. The tribunal found it was unwanted conduct which had the purpose and effect of violating the claimant's dignity and creating and intimidating, hostile, degrading, humiliating or offensive environment.
The tribunal then went on to find that the respondent was liable for the acts of its employees. The tribunal rejected the respondent's defence that it had taken "all reasonable steps" to prevent its employees from harassing someone with the claimant's protected characteristic. This was due to two things: Firstly, the Dignity at Work policy did not make refence to belief. Secondly, 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 respondent had not found any suitable external providers so the training had not gone ahead.
The tribunal also indicated that there should be an uplift in the award in the region of 10% in view of the respondent's unreasonable failure to provide a specific right of appeal regarding the investigation outcome. There was an indication from the respondent at the time, that if the claimant was not satisfied with the response, she could raise the matter with one of the organisations listed in the whistleblowing policy but there was no indication as to how the claimant could appeal under the Dignity at Work policy. That policy states that, if not satisfied with action taken, the individual should use the grievance procedure. The tribunal rejected the respondent's argument that as an experienced trade union representative the claimant should have known to check the policy.
What does this mean for employers?
The key message from this case is managers should generally stay neutral in contentious debates about protected beliefs. Employers face tricky scenarios and difficult decisions when balancing the rights of employees who express protected beliefs which clash with other protected beliefs. Employers need to take a measured response when dealing with this issue, which often creates heated debate. It is necessary to ensure all beliefs are respected in the workplace, even if they have the potential to offend.
Managers and senior staff should seek to limit any all-staff debate over email or internal intranets/social media which could cause offence and be found to be harassment.
As mentioned in July's alert, emphasising that any discussion about these issues should be carried out with dignity and respect, even when there is disagreement, and setting clear rules for workplace behaviours will also be key in ensuring disagreements do not give rise to successful discrimination claims for those on both sides of the debate.
From a practical point of view, employers must also have everything in place so they are able to evidence that they have taken "all reasonable steps" to prevent harassment and other forms of discrimination. This will include making sure policies are up to date and that sufficient training has been given to staff.
This case also highlights that when giving the outcome of an investigation/grievance employers should also spell out any right to appeal and the procedure attached to that, so the employee is clear what they must do if they wish to appeal.
