In part two of our three part series, we will be considering recent Employment Tribunal decisions involving the protected characteristics of sexual orientation, gender reassignment and philosophical belief.

Over the last couple of years, there have been a number of notable discrimination cases in relating to LGBTQ+ people and people whose views are in direct conflict with LGBTQ+ identities, for example, due to religious reasons or based on a philosophical belief.

It is important that employers have an awareness of the complexities that can arise when dealing with conflicting protected characteristics and the large financial penalties that can arise when an Employment Tribunal defence is unsuccessful, especially where employers have been heavily criticised due to the extent of the discriminatory conduct:

Ms A Taylor v Jaguar Land Rover

Facts

Ms Taylor was employed as an Engineer by Jaguar Land Rover and had worked for them for around 20 years. During her employment, Ms Taylor began to present as gender fluid (definition: a person whose gender identity is not fixed).

When she did, her colleagues asked whether she intended to have her “bits chopped off” and they referred to her as “it”.

When these concerns were raised to HR, Ms Taylor received little to no support and she later resigned.

Jaguar Land Rover argued that the Claimant could not rely on the protected characteristic of gender reassignment as she identified as gender fluid and non-binary which they argued was outside the scope of the definition.

The definition itself states that gender reassignment is “a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”

Employment Tribunal Decision

The Employment Tribunal disagreed with Jaguar Land Rover’s interpretation and it was expressly acknowledged that gender is a spectrum and the protected characteristic of gender reassignment encompasses various gender identifies including non-binary, gender non-conforming and gender fluid people. 

Ms Taylor’s claim was therefore successful and she was awarded £180,000 in compensation including an award for aggravated damages (which are only awarded in the most serious and shocking cases). The award for aggravated damages was made due to the severity of the Claimant’s mistreatment.

As this was a first instance decision, it is not binding on other Tribunals and it remains unclear whether another Tribunal would agree with this interpretation of gender reassignment.

Ms M Forstater v CGD Europe and others

Ms Forstater’s case was in relation to whether her belief that “being female is an immutable biological fact, not a feeling or an identity” is capable of protection as a philosophical belief under the Equality Act.

Facts

The factual background is that Ms Forstater’s contract as a Consultant with the Centre for Global Development (CGD) was not extended due a series of statements that she published on Twitter in opposition of proposed reforms to the Gender Recognition Act 2004.

Ms Forstater submitted a claim to the Employment Tribunal alleging that the decision not to extend her contract was discriminatory on the grounds of her philosophical beliefs.

Employment Tribunal Decision

The Employment Tribunal rejected Ms Forstater’s case as it was deemed that her beliefs were not worthy of respect in democratic society due to their “absolutist” nature.

For example, the Tribunal found it was likely that she would refer to people by the pronouns she considered appropriate based on their natal sex, even where this may amount to harassment.

It was Ms Forstater’s contention that the Employment Tribunal had erred in law in reaching this decision and she submitted an appeal to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal Decision

The EAT allowed Ms Forstater’s appeal as they stated that her beliefs were “statements of neutral fact” and the Claimant advised that she would in fact use people’s preferred pronouns in most social situations to be polite.

The EAT further confirmed that it is only views to the extent of advocating “Nazism or totalitarianism” that should be excluded from this protection, which appears to indicate that it is a very low threshold for a philosophical belief to be regarded as worthy of respect in a democratic society.

The judgement made clear that this does not mean that people who hold such views can misgender transgender people with impunity or manifest their views in a discriminatory manner they remain subject to forms of discrimination, including harassment.

The case has been remitted to a fresh Employment Tribunal to decide whether Ms Forstater was in fact discriminated against due to her protected characteristic.

Definition of Gender Reassignment

An interesting observation from the judgement is that it was stated that the protected characteristic of gender reassignment “would likely only apply to a proportion trans persons.”

Although no further information was provided, it is an indication that the definition of gender reassignment may be narrower than previously stated in the judgement of Taylor v Jaguar Land Rover set out above.

Although we await clarification on the scope of the definition to provide certainty for employers, we would encourage employers continue to treat employees with respect and dignity.

Even if someone does not have a protected characteristic, they may have the right to bring other claims such as unfair dismissal which do not require a protected characteristic.

It is also likely that an Employment Tribunal would be highly critical of an employer who treated someone unfavourably, but argued they were justified in doing so solely because the person could not rely on a protected characteristic.

Mr P Allen v Paradigm Precision

Facts

Mr Allen was a senior employee at Paradigm Precision where he was employed in various senior roles during his employment including Quality Director.

Throughout the course of the Claimant’s employment, he decided not to disclose his sexual orientation save for to a small number of colleagues. At the time, the Claimant was not aware of any openly gay males in the business.

When the Claimant did decide to come out as gay to the wider business, he informed his employer that he was planning to adopt a child with his husband and asked to take 12 months leave from work.

The Claimant was subsequently subjected to a myriad of homophobic and stereotypical insults. For example, he received inappropriate emails, he was told that he was “camp” and his colleagues used “limp hand gestures” towards him.

Around the time that he came out, Mr Allen also had been considered for a promotion, however, the job quickly disappeared following his disclosure of his intentions to adopt. The Claimant ultimately resigned from his employment as a result of the conduct.

Employment Tribunal Decision

The Employment Tribunal determined that Mr Allen had been subjected to unlawful discrimination on the grounds of his sexual orientation and he had been constructively dismissed.

For example, the Employment Tribunal found that Mr Allen was rejected as operations director and then as a candidate for a general manager role because of his request to take adoption leave.

Mr Allen was awarded £175,000 by the Employment Tribunal.

Mrs A McMahon v Redwood TTM

Facts

The Claimant, a lesbian female, was employed as a Quality Control Manager by a textiles firm, Redwood TTM.

When she commenced her employment, she informed her manager of her sexual orientation and she was advised not to disclose it further due to the owner’s “old school” beliefs and as there were no other gay people working there.

Ms McMahon complied with this request but was made redundant a few months after she began her employment.

Ms McMahon was unable to bring a claim for unfair dismissal due to her short service but she did submit a claim for discrimination on the grounds of sexual orientation. Ms McMahon advised the Tribunal that although she had complied with the request not to make her sexual orientation “common knowledge”, the request had made her feel odd and uncomfortable.

Employment Tribunal Decision

The Employment Tribunal concluded that the request for Ms McMahon not to disclose her sexual orientation had amounted to unlawful discrimination.

This decision was reached as the Tribunal felt that someone who was not gay would not have been asked to conceal their sexual orientation.

These decisions show that the legal landscape concerning the protections afforded to the LGBTQ+ community, and those who are in direct opposition of them, is extraordinarily complex, and where employers make unlawful decisions, they can sometimes find themselves in hot water both from a reputational and financial perspective. This is all the more reason why employers should seek to educate their workforce on discrimination and harassment matters, and in the event things go wrong, seek advice from a specialist employment and discrimination lawyer.