Recently, the Employment Tribunal delivered a liability judgment in Maya Forstater v CGD Europe and others.
Ms Forstater succeeded in her claim that the Respondent had discriminated against her because of her beliefs when they refused to renew her contract after she had expressed “gender critical” views on Twitter.
The Employment Appeal Tribunal (EAT) had earlier found that while those views were capable of being “profoundly offensive and even distressing”, they were “beliefs that are and must be tolerated in a pluralist society”. Accordingly, they were protected by the Equality Act.
Although an employee’s controversial beliefs may be protected by the Equality Act, B P Collins’ employment team advise this judgment doesn’t give employees carte blanche to behave in a manner of their choosing.
It’s useful to contrast the Forstater case with another recent EAT decision – Dr David Mackereth v Department for Work and Pensions and another Dr Mackereth’s views on sex and gender were rooted in his Christian faith. He believed that Genesis 1:27 (“So God created mankind in his own image…male and female he created them”) was true and that therefore a person cannot change their sex or gender at will and any attempt to do so would be “pointless, self-destructive and sinful”. Just as in the Forstater case, the EAT concluded that though “likely to cause offence”, those views were worthy of protection under the Equality Act.
However, Dr Mackereth wished to manifest his beliefs by intentionally referring to service users as their birth sex, regardless of their preferred pronouns. When the Respondent sought to clarify his position, he resigned and brought claims for discrimination. The EAT held that no detriment had been inflicted on Dr Mackereth by the Respondent’s request for clarification, but even if it had, the Claimant’s refusal to use service users’ pronouns would not have been protected by the Equality Act. This was because the Respondent would have been acting based on an objection to the way in which Dr Mackereth wished to manifest his belief, rather than on an objection to the belief itself.
The way in which Dr Mackareth wished to manifest his belief stands in stark contrast to Ms Forstater. Ms Forstater has always been clear that her case has never been about encouraging or enabling harassment of trans people. Speaking on the Today programme, Ms Forstater said that people should treat each other with respect in the workplace. At the hearing, the Tribunal heard how she had tweeted that “it is polite to treat ppl as they like”. The majority of the Tribunal found that she never crossed the line into an “objectively unreasonable” expression of her views.
What can employers learn from both cases?
For employers, the important takeaway from these cases is a clear understanding that a wide range of beliefs can be protected under the Equality Act, no matter how unpopular they might be. Employers should be careful when dealing with employees who express such beliefs. Mere statements or “logical applications” of these beliefs may not warrant action against employees. Employers should instead seek to identify whether employees are manifesting their beliefs in an inappropriate manner.
This is a fine line for employers to tread, especially if the employee’s views are offending or upsetting other staff and so employers are strongly encouraged to take advice if the situation arises. Employers are also strongly advised to maintain clear policies and implement training on equality in the workplace, ensuring that all individuals are aware of what is and is not acceptable.
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