Philosophical belief and gender critical beliefs

Facts:  The employee, Ms Fahmy, was employed by the Arts Council England (ACE) as a relationship manager.  She holds gender critical beliefs (in that she does not believe trans women are women).

In April 2022 the London Community Foundation (a branch of ACE) awarded a grant to the LGB Alliance (a charity supporting those who are lesbian, gay and bisexual). The award of the grant was widely criticised on social media as the LGB Alliance was accused of having a history of anti-trans activity. London Community Foundation therefore suspended the grant.

Ms Fahmy attended an internal Teams meeting which discussed the grant. During the meeting, ACE’s deputy chief executive expressed the view that LGB Alliance had a history of anti-trans activity and that it was a mistake to award the grant. Ms Fahmy challenged him about his statements and defended LGB Alliance by stating it was not anti-trans. Ms Fahmy also asked him how gender critical views were protected within the organisation.

Following the meeting, an ACE employee sent an email to all staff encouraging ‘allies’ to sign a petition (via an attached link) with a view to bringing a formal grievance about the way internal Teams meeting was handled and colleagues who had expressed ‘clear, homophobic, anti-trans views’ during it. Also to complain about the lack of training on trans issues. The email encouraged staff comments and several posted comments which, for example, equated gender critical beliefs to ‘cancer’ and a form of ‘bigotry’, and described the LGB Alliance as a ‘glorified hate group’ supported by ‘neo-Nazis, homophobes and Islamaphobes’.

The author of the email and petition was immediately suspended. However the petition remained live for over 24 hours before it was taken down. Ms Fahmy (who had received the all staff email and the comments) brought a grievance.

The investigator concluded that she hadn’t been targeted via the petition, but accepted that it was capable of causing offence to people with gender critical views. Disciplinary action was taken against the author of the email and two other employees who had posted comments. Mr Fahmy brought a claim of discrimination on grounds of religion or belief and later resigned.

Tribunal decision

ACE accepted that Ms Fahmy’s gender critical beliefs were protected. The Tribunal therefore had to determine whether she had been harassed during the drop in session and as a result of the petition.

The Tribunal found that whilst it was inappropriate for the Deputy Chief Executive to express his personal views, his actions did not amount to harassment. However the petition and comments that accompanied it did harass Ms Fahmy and were designed to create a hostile environment for her. Ms Fahmy therefore succeeded with this part of her claim.

ACE argued that it wasn’t liable for the actions of the employee because it had taken all reasonable steps to prevent the harassment. Specifically, it had taken disciplinary action against staff and had a Dignity at Work Policy which had enabled Ms Fahmy to bring a grievance.

The Tribunal rejected this argument and held ACE liable for its employees’ actions. It said that despite ACE’s knowing that beliefs surrounding gender was a contentious issue within the organisation, it had not:

• Updated its Dignity at Work Policy (it had not been reviewed since 2019);
• Ensured that its Dignity at Work policy accurately set out the characteristics protected under the Equality Act 2010. Rather, it referred to ‘gender’ (which is not a protected characteristic) and omitted both ‘sex’ and ‘belief’ (which are protected characteristics); and
• Updated its equality training to include belief discrimination (even though it knew it needed to do so, but had not yet found a suitable trainer to facilitate this).