14 July 2022
The London Central Employment Tribunal has issued a lengthy judgment in the long-awaited Maya Forstater gender beliefs case. ANNE-MARIE BOYLE looks at how the case has developed and what it may mean for employers
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As keen Tribunalists will know, Ms Forstater was a researcher on sustainable development and a visiting fellow of a think tank. She was concerned by proposed amendments to the Gender Recognition Act 2004 (‘GRA’) (in essence to make the process more simple to change gender) and expressed her beliefs about those issues and her views relating to the transgender debate generally on Twitter – often re-tweeting other material that supported her views.
Some colleagues at CDG Europe raised concerns that her tweets were trans-phobic. Ms Forstater claimed that, as a result of these complaints, she was not then offered further consultancy work and her fellowship was not renewed. Her webpage and profile were removed from the company’s website after she complained about being discriminated against due to her beliefs.
She brought proceedings alleging direct discrimination because of her ‘gender-critical’ beliefs, harassment and victimisation.
At her first ET hearing, the only question being considered was whether her beliefs were protected as a philosophical belief under the Equality Act.
Following an extensive analysis of what Ms Forstater’s beliefs were in respect of biological sex and gender, the ET found that her ‘belief’ that biological sex could not be changed and that sex was fundamentally important – not gender. In doing so, it found that this ‘belief’ was not worthy of protection in a democratic society and should not be protected. Her claims were therefore dismissed.
Ms Forstater appealed to the EAT. The EAT held that all manners of beliefs (some shocking, offensive or even downright disturbing) are capable of protection as long as it does not involve a very grave violation of the rights of others. The EAT noted that Ms Forstater’s views were shared by many people (including respected academics) and were, in fact, in line with the law in the UK (which, in most cases, is mainly binary). They were therefore capable of being protected under the Equality Act.
As has been the pattern with religion and belief cases in the ET since this was first introduced as a protected characteristic, the main battleground is whether any detrimental treatment occurred because of the belief itself, or, because of the way the person manifests their belief in the workplace. This case was no exception. Ms Forstater argued that her views (particularly expressed via her Twitter account) were not such that offence could reasonably be taken in the context of the on-going debate around sex and gender. CDG argued that it was the manner of her expression that had meant it was not possible to continue to engage with her and that it would be contrary to their policy of having an inclusive workplace.
Whilst not succeeding in all claims, the ET found that the decisions not to offer Ms Forstater a full contract of employment and not to renew her Visiting Fellowship were taken at least in part because of her belief, and therefore amounted to direct discrimination. In doing so, the ET specifically found that Ms Forstater ‘had never crossed the line into an objectively unreasonable expression of her belief’.
On the complaint of victimisation, the Tribunal found that employer had failed to provide an adequate explanation for the removal of Ms Forstater’s profile from their website, against the background of her complaint that she had been discriminated against. Remedies will be determined at another hearing.
For those interested in how freedom of expression can be played out in the workplace – the ET judgment is a fascinating read. I imagine it will take the Respondent a little while to digest the judgment and decide on whether there will be an appeal – I don’t believe this is the last we have heard from this case. Certainly it will not be the last case on how far employees can go with holding beliefs in the workplace.
I imagine CDG Europe felt like they were between a rock and a hard place here. They had a consultant with ‘strident and campaigning’ views (I am quoting the ET here) on gender-critical issues on the one hand, and several employees complaining that these were transphobic and left them feeling harassed in the workplace. Many companies will sympathise with this difficulty – who should have more protection here? If CDG had not acted as they did, they may well have faced claims for discrimination and harassment from the employees who complained about Ms Forstater.
The ET found that CDG Europe went too far in their actions. It is however a very difficult balance for employers. Whilst this case (as with so many ET claims) is fact specific, it is a cautionary tale to employers that they must try to act as objectively as possible when balancing freedom of expression and belief versus other rights in the workplace. This case happened to be about gender issues in the workplace but could easily have been about any issue that causes polarity in society.
I’m shortly going to be posting some blogs on trans issues in the workplace so do look out for those.
In the meantime if you want to share your thoughts on the Forstater case or I can help you with any thorny employment law issues, do get in touch: email@example.com