On and off social media platforms, the debate on sex and gender has become polarised. Given the recent rise in tribunal decisions pertaining to these issues, what are the challenges for HR and how should employers respond? Jo Faragher reports.
For HR professionals looking to keep up with the latest employment law developments, it’s hard not to ignore the rising tide of employment tribunals involving gender-critical beliefs.
According to the government’s tribunal decisions portal, there have been 14 decisions in the space of less than two years, and several of them have made national news headlines.
The most prominent of these cases was that of Maya Forstater, who was awarded more than £100,000 in a case against the Center for Global Development.
The organisation was found to have unlawfully discriminated against Forstater after it did not offer her an employment contract or renew her visiting fellowship because she had expressed gender-critical views on her Twitter account.
The Forstater judgment has been cited in tribunals numerous times since as a demonstration of how a genuinely held belief that sex is immutable can qualify for protection under the Equality Act.
Later prominent cases include that of barrister Allison Bailey, who won a case against her employer Garden Court Chambers after losing work due to her involvement with the LGB Alliance Group; Christian doctor David Mackareth, who was able to appeal a 2019 tribunal decision in the light of the Forstater case (but lost); and Open University professor Jo Phoenix, who won her case for harassment, discrimination and constructive dismissal.
Tribunal’s advice
But it was an instruction by the judge in the recent case of a social worker suspended and subjected to a long disciplinary process by both Westminster City Council and her professional regulator that may prompt HR and diversity teams to consider how they deal with contentious beliefs at work.
Gender critical cases
Forstater wins £100k in gender critical belief judgment
Gender-critical beliefs: Implications of EAT’s Forstater decision
In January, Rachel Meade successfully sued the council and Social Work England for harassment.
The tribunal heard that she had shared a link to a petition to the International Olympic Committee that male athletes should not compete in female sports, as well as another petition on women’s rights to sex-based protections, such as female-only hospital wards.
Social Work England received a complaint about the social media posts and she was placed under investigation, and then later suspended by Westminster City Council, which undertook its own investigation.
The tribunal found that the nature of the disciplinary process constituted harassment, ruling that her social media posts “fell within her protected rights for freedom of thought and freedom to manifest her beliefs as protected under Articles 9 and 10 [of the Human Rights Act]”.
Meade has been awarded £58,000 in compensation, and the judge has ordered all managers, HR staff, triage staff and investigation staff in both Westminster City Council and Social Work England to receive training on the freedom of expression and protected belief, “including the implications of the Forstater judgment”.
Contentious issue
But given this instruction, and the seemingly growing number of successful claims against employers where claimants have held gender-critical beliefs, should organisations be delivering training on this as standard?
Rhys Wyborn, an employment lawyer at Shakespeare Martineau, explains that one of the reasons that compensation was so high in the Meade case was the fact that the council “should have known better” in the light of recent decisions such as that in the Forstater case.
“You can’t bury your head in the sand and think it won’t be an issue,” he says. “The rise in claims like these shows that more and more beliefs are being deemed as worthy of protection under the Equality Act. And inevitably, if more beliefs and rights are protected, that raises the potential for those thought systems to come into conflict.”
Wyborn acted for the League Against Cruel Sports in the 2020 case that saw ethical veganism recognised as a philosophical belief, so is acutely aware of how the legal landscape around belief cases is evolving.
“The way the Equality Act is drafted leaves it open that many types of belief are worthy of protection, as long as they meet the five-step test that shows they meet the requirement,” he adds. “So while supporting Rangers might not be considered a belief worthy of protection, a number of beliefs such as those around gender or veganism tick the boxes comfortably.”
Difficult balance
This of course does not make dealing with contentious issues in the workplace any easier. The Open University recently commissioned its own independent review into how to balance conflicting views with the right to freedom of opinion and employment law, for example, following the Phoenix case.
“The biggest lesson that should be taken from these cases is that when it comes to the contentious debate over gender identity, employers need to think in terms of balancing conflicting rights, rather than viewing their role as protecting one group (those with the protected characteristic of gender reassignment) from discrimination by another (those with gender critical views),” explain Kerenza Davis of Blackstone Chambers and Katie Mahoney of Mishcon de Reya in a recent article on the subject.
Grainger criteria
According to barrister Andrew Rhodes of No5 Barristers’ Chambers, it could be worth employers establishing or reviewing policies on internal beliefs and expressions if they wish to avoid legal claims.
A useful benchmark to understand what might and might not be covered by the Equality Act in such claims is to apply the Grainger criteria, he advises. This was established in 2009 following the case of Grainger v Nicholson, and sets out the following:
• The belief must be genuinely held.
• It must be a belief and not simply an opinion or viewpoint based on the present state of information available.
• It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
Davis and Mahoney note that in the Meade case, Social Work England was required to pay exemplary damages of £5,000. Exemplary damages are rare, and are designed to punish “conduct that is oppressive, arbitrary or unconstitutional”, they add. The regulator had “allowed its processes to be subverted to punish and suppress Ms Meade’s lawful political speech”, the judgment said.
In this context, it can be difficult for organisations who want to promote diversity and inclusion to communicate their intentions on this without provoking a debate, or worse attracting a complaint or grievance.
Stay neutral
So for an employer celebrating LGBTQ staff or hosting a Pride march, could it be argued that supporting staff with gender-critical beliefs goes against those efforts? Can an employer celebrate different identities without aggrieving others? “It’s more of a tightrope than before,” adds Wyborn. “As an employer you must try to avoid being seen to be in one camp or another, to be taking sides.”
“The Forstater and other judgments made it clear that someone can hold a gender-critical belief but that the decisions did not mean people could be transphobic or misgender people. The key is to have a framework where people know they will be treated with dignity and respect even if their belief comes into conflict with those of someone else.”
Jim Moore, employee relations expert at HR consultants Hamilton Nash, agrees that the “debate over sex versus gender has become prominent and acrimonious”, meaning that a balanced approach is absolutely necessary.
“Employers have typically struggled to find a balance between these competing viewpoints, and have often taken the wrong stance – sometimes informed by advice from organisations like Stonewall,” he says. “As a result, some employers are now unsure how to handle the topic if it arises in their workplaces.”
“Expressing a view is lawful provided that the manner in which it is expressed does not cross the line into harassment or discrimination. It does not matter if that view is unfashionable, unpopular or considered by some to be objectionable, as long as no harassment or discrimination arises.”
Training and culture
Laura Clark, a senior associate in the employment team at law firm Knights, says training can be a good opportunity to engage with employees in how to foster a non-discriminatory work culture. “However, this is a sensitive topic, and it will be crucial to ensure that any training is delivered in a safe and non-judgmental environment,” she advises.
“It is important to ensure that employees are aware of their employer’s expectations with regards to discussions of sensitive topics and the potential consequences for engaging in such debate. Employers should advise employees as to their internal processes for raising any concerns, and the support that will be given to them, with a view to resolving issues in a collaborative way.”
Jane Bradshaw-Jones, HR business partner at AdviserPlus, adds that managers should not forget they may have their own assumptions on these issues, and should put those aside. “Managers also need to be able to recognise whether they have their own bias (either consciously or unconsciously) and ensure that they avoid stereotyping or making decisions based on this,” she says.
As an employer you must try to avoid being seen to be in one camp or another, to be taking sides.” – Rhys Wyborn, Shakespeare Martineau
“Training on unconscious bias is underutilised but can provide individuals with personal insight about how we make judgments about others and how to prevent discrimination. Organisations play a critical role in creating a culture where it’s okay to discuss beliefs in an open and sensitive manner but understand that all opinions are valid.”
Should conflicts arise, Mehvish Shaffi-Ajibola, a mediator and founder of Socially Inspired, advises employers to focus on the human aspects of discussions rather than processes and policies. She says: “Adopting a restorative approach and using intra and inter-personal communication can help foster meaningful dialogue and effective sustainable solutions.
“This could involve setting up facilitated conversations or creating spaces for learning and listening, which enhance awareness and relatability among colleagues. Implementing these strategies promptly can help prevent challenging situations from escalating further.”
Looking forward
A further consideration is that, from October this year, employers will come under an obligation to prevent workers from harassment under the Worker Protection Act, so it’s important to remind staff of what’s acceptable, adds Wyborn from Shakespeare Martineau. “This carries with it a potential 25% uplift in compensation at tribunal, so these policies should not just be in a handbook on a shelf, but managers should be reminding staff about their obligations to be respectful,” he advises.
That said, Anna Fletcher, an employment partner at Gowling, argues that the recent slew of decisions in gender-critical cases could in itself mean a decline in their frequency because it’s increasingly clear to employers that such beliefs are protected.
“This particular battle in the culture war should be largely over,” she says. “The law is clear that so-called ‘gender-critical’ beliefs are protected as is, in summary, their reasonable expression. Harassment continues to be outlawed but as with nearly all cases about belief, the outcome will very much depend on the particular facts.”
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