11 June 2021
Philosophical Belief Discrimination and Gender Critical Views
The Employment Appeal Tribunal has published its decision in the widely debated case of Forstater v CGD Europe & ors, Index On Censorship and EHRC intervening.
The decision, which may split opinion, is that Ms Forstater’s belief that there are only two biological sexes and it is not possible to change one’s sex, is a ‘philosophical belief’ such that it was protected under the Equality Act 2010.
In deciding this, the EAT has distinguished Ms Forstater’s belief (which it has noted was widely shared and did not seek to destroy rights) from other beliefs which are described as an “affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms…”, and which it says are “not worthy” of protection.
Therefore, in theory, a worker holding such a belief may not be treated less favourably because of it.
However, as the EAT itself has emphasised, this does not mean that a worker holding such a protected belief (or indeed any other) may treat a colleague less favourably because of it.
The case now goes back to the Employment Tribunal to decide whether CDG Europe’s treatment of Ms Forstater, in not renewing her consultancy agreement after complaints were made that some of her tweets were “transphobic”, was discriminatory.
Therefore, employers are best advised to take some care when considering how to treat a worker’s particular belief, although only certain beliefs and actions will be protected under the Equality Act. A worker will need to show that the belief was genuinely held, relates to a weighty and substantial aspect of human life and behaviour and be worthy of respect in a democratic society.
With some feeling reluctant to have the Covid vaccination, it will be interesting to see whether such beliefs would meet those criteria and, if so, in what circumstances employers can justify treating an employee less favourably because they haven’t had the jab.