Conflicting views need careful balancing after Forstater

What are the implications of last month’s decision of the Employment Appeal Tribunal in the Forstater case that gender-critical beliefs are covered by the Equality Act and those who hold and express those beliefs are protected from discrimination? What are the lessons for employers when it comes to managing employees who express their beliefs and opinions in a way which may upset others? Is it free speech or does it cross a line?  

A reminder. This is the case brought by Maya Forstater which has attracted national press coverage. It was high profile, crowd-funded litigation which was failed at first instance but, as the BBC reported in June, was successful on appeal to the EAT. Maya Forstater subsequently gave an interview to Sky News explaining the background to her claim and the decision by the Centre for Global Development not to renew her contract after she had posted a series of tweets questioning government plans to let people declare their own gender – plans which were later scrapped. She argued that gender-critical beliefs are a form of speech protected under the Equality Act, meaning the decision not to renew her contract was unlawful discrimination.  The EAT agreed.

Personnel Today followed her initial, unsuccessful, claim at the London Central employment tribunal which culminated in a 26-page judgement from Judge Tayler that Forstater was ‘absolutist in her view of sex’, and her views were ‘not worthy of respect in a democratic society’ and so fell outside the scope of the Equality Act. The EAT flatly rejected that on the basis it set the bar far too high – a point we’ll come back to shortly.

People Management reported on the successful appeal with its headline ‘Gender critical beliefs are a form of protected speech’ setting out why the EAT thought the tweets were within scope of the Equality Act. The EAT said that a belief that ‘biological sex is real, important, immutable and not to be conflated with gender identity’ is a protected philosophical belief under the Equality Act and the tribunal was wrong to rule otherwise. 

That ruling has sparked a debate over the precise scope of trans rights and the relevance of an individual’s biological sex as opposed to their gender identity. Not surprisingly, most of the commentary is centred on the scope of trans rights and an individual’s biological sex verses their gender identity.  However, we do think this case has a wider significance which is important to understand when it comes to handling opinions and beliefs expressed by employees. In its judgement the EAT said the tribunal had set the bar too high for views ‘worthy of respect’ and that the only beliefs excluded are the most extreme beliefs ‘akin to Nazism or totalitarianism or which incite hatred or violence’. But what does that mean in practice? It’s a question I put to Linda Jones who joined me by video-link to discuss the case: 

Linda Jones: “Well, what that means now is that there are such a wide range of views and beliefs that individuals might hold that could be capable of being a protected belief under the Equality Act, and there have been some cases already before the tribunal which haven't succeeded, which might now succeed. One case, an interesting point, is about vegetarianism. We've had one tribunal decision where ethical veganism was held to be a philosophical belief, but we have also had another tribunal decision where vegetarianism wasn't held to be a philosophical belief. So, you can quite easily see now that somebody who believes in vegetarianism and has a vegetarian lifestyle, that that could now pass the test, and other potentially more offensive beliefs might pass the test, or beliefs that other people find offensive, at any rate, because the Employment Appeal Tribunal was very clear that people have to be tolerant of views that don't necessarily coincide with their own views.”

Joe Glavina: “Can I ask you about climate change, Linda, because that's a big issue now. Do you think this case has some application in that context as well?

Linda Jones: “Definitely, yes. We have already had from the Employment Appeal Tribunal in the Grainger decision a ruling that a belief in climate change is a protected belief, but there are all sorts of related views that could arise out of having a green philosophy - and I’ve just mentioned, for example, vegetarianism as being one of those, belief in animal rights protection. The way in which that manifests itself in the workplace is going to be quite interesting because, obviously, lots of employers are engaged in work which might offend people’s views on things like climate change, on destruction of the environment, on protection of wildlife, that sort of thing. So, somebody, for example, could say that they've got a strong philosophical belief in protecting ancient forests and could that be a philosophical belief? Would that mean that they would be within their rights to refuse to work on a project that they said was going to involve the destruction of ancient forests? So, I think, given the society that we're living in now, and obviously views being expressed in social media and the willingness of people to be more open in the workplace about their views, I think there are going to be quite a few of examples of employees actually saying to their employers that, you know, look, I've got strong views about this, and I'm not prepared to engage in this work because of those views.”

Joe Glavina: “Last question, Linda. This is a difficult area, clearly, and some of the legal concepts are really quite complex and I’m guessing a lot of managers would struggle with it. So what’s your advice to them, and to HR?” 

Linda Jones: “Well I think that although we have to tolerate other people's views, it doesn't necessarily mean that they're allowed to either express those views in a way which are offensive to other people, or refuse to carry out their duties because of those views. So, to take the first point, if you hold a belief, as Ms. Forstater did, that sex is immutable, that doesn't give you licence to discriminate in the workplace against trans people by being very open about those views, or expressing those views, in a way that is discriminatory or harasses trans people. So, I think employers should really be taking steps, in terms of the trans population, to reassure those people that this particular decision doesn't mean that people are going to have licence to behave in a discriminatory way towards them. On the second point, again, holding a strong view doesn't mean that you can refuse to carry out certain duties that you're obliged to carry out because of your job and that has been reinforced in a number of different cases by the Employment Appeal Tribunal in cases going back to Ladele, who was a registrar, who refused to carry out gay weddings because of her Christian beliefs, and there have been other recent cases where people who've had beliefs about the immutability of sex because of their Christian faith. That has been held to be a protected belief, but that doesn't entitle them then to refuse to provide services to trans people. So, people still are obliged to carry out their job duties, regardless of their philosophical beliefs.”

That judgement of the EAT in the Forstater case makes for interesting reading if you have the time, and we’ve put a copy of it in the transcript of this programme. Another interesting angle to this is how this case might apply to so-called anti-vaxxers, which we are hearing a lot about these days of course. That’s an issue we have discussed with Anne Sammon in our programme ‘Forstater ruling has ‘wider implications’ for belief cases’. That programme is available now for viewing from the Outlaw website.

LINKS
- Link to case report: Forstater v CGD Europe & others (EAT)