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Philosophical belief and gender critical beliefs

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Was an employee (who expressed gender critical views at work) harassed by colleagues opposed to her views?  If so, was the employer liable for this (despite it saying that it had taken all reasonable steps to prevent it)?

The Tribunal in Fahmy v Arts Council England (available here) says YES on both those questions.

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).

Implications:

This case and Higgs (above) are examples of the increasingly common clash in the workplace between trans and gender critical views (and rights). It is therefore increasingly a priority for employers.

Employers need to be alert to any conflict of views within their workforce and take care to tread the fine line between allowing the expression of (protected) beliefs, whilst ensuring that the way in which this is done (or manifested) does not discriminate against or harass those who have different (protected) beliefs.

If you do suspect the expression of beliefs is in danger of becoming harassment, it is important to assess this before taking any action. For example, by using the ‘proportionality assessment’ recommended in Higgs.

However, even if an employer does take action (as it did in this case by disciplining the employees involved) this may well not be enough to protect you from a claim or to enable you to rely on the ‘employer’s defence’ that you took all reasonable steps to prevent the discrimination.

To have the best chance possible to rely on the ‘employer’s defence’ we recommend that you:

  • Provide up-to-date training on diversity and inclusion issues
  • Ensure that Dignity at Work policies (and related policies) are up to date. Ideally, such policies should be reviewed on an annual basis
  • Ensure that the terminology used in such policies reflects the Equality Act 2010 (e.g. ‘sex’ rather than ‘gender’) and that it covers all protected characteristics and reflects the wide scope of anti-discrimination law
  • Ensure that Dignity at Work policies (and related policies) are actually communicated and read by staff
  • Set out the standards of behaviour expected from staff, including the need to treat colleagues with dignity and respect in all forms of communication (including social media). Explain that disciplinary action will follow where staff fail to meet such standards, up to and including dismissal
  • Advise managers to take care when and how they express their personal opinions on the gender critical/trans debate. Avoid being seen to take sides.
  • Deliver equality training to staff, ensuring that it is balanced, thoughtful and clearly presented and also refreshed at regular intervals. Ensure that the training covers belief discrimination alongside other types of discrimination.

Failure to do this may mean that you cannot rely on a defence that you have taken all reasonable steps to prevent discrimination.

 

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