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What does the decision in Forstater v CGD mean for employers?19th July 2021 Employment
On the 10 June 2021 in Maya Forstater v CGD Europe UKEAT/0105/20/JOJ, the Employment Appeal Tribunal (EAT) found that gender-critical beliefs, such as the view that sex is fixed and should not be conflated with gender identity, did qualify for protection under the Equality Act 2010 (Equality Act). This means that “gender critical” beliefs are protected “philosophical beliefs” for equality law purposes.
The issues in this case are of a highly sensitive and complex nature. As such, the EAT did not express any views on the merits of either side of the transgender debate and the judgment was purely concerned with whether the Employment Tribunal (ET) had erred in law, when deciding that Maya Forstater’s (Forstater) belief was not capable of protection under the Equality Act.
This naturally raises difficult and complex issues for employers seeking to balance employees’ rights to hold a philosophical belief, and not be discriminated against, as against other employees’ rights not to be harassed or discriminated against because of their protected characteristic.
Background to the case
Forstater worked as a consultant for CGD Europe, a not-for-profit think tank focussed on international development. She was a researcher, writer and adviser on sustainable development and worked at CGD from November 2016 until October 2018, when her contract was not renewed. This occurred after a number of colleagues raised concerns about some of her tweets, alleging that they were “trans-phobic” “exclusionary or offensive” and made them feel “uncomfortable.”
Forstater consequently brought a claim in the ET, alleging direct discrimination and harassment because of her “gender-critical” beliefs.
The Legal Position
The Equality Act prohibits forms of discrimination to the extent that it relates to one or more “protected characteristics”. “Religion or belief” is one of the nine specific protected characteristics, which means it is unlawful to discriminate because of an individual’s belief. To qualify as a “philosophical belief” under s.10 of the Equality Act, the belief must satisfy the five criteria set out at para 24 in Grainger v Nicholson . These are that:
- the belief must be genuinely held;
- be a belief and not an opinion or viewpoint based on the present state of information available;
- 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; and
- it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The ET’s decision
This involved a preliminary hearing to determine whether Forstater’s belief was a philosophical belief within the meaning of s10 of the Equality Act. The Tribunal held that it did not constitute a protected philosophical belief. This was because of its absolutist nature, due to the fact Forstater would “refer to a person by the sex she considered appropriate even if it violated a person’s dignity” and as such was not worthy of respect in a democratic society, meaning the fifth Grainger criteria was not satisfied.
The EAT’s Judgment
It was held that the ET had erred in its application of the fifth Grainger criteria and that a philosophical belief would only fail to satisfy the fifth criteria “if it was the kind of belief of which would be akin to Nazism or totalitarianism”. The EAT explained that s10 of the Equality Act, must be interpreted in accordance with Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). Which both provide for a lower threshold for establishing that a belief is worthy of respect in a democratic society. A philosophical belief would only be excluded from the scope of protection if it was a grave violation of ECHR principles, seeking to destroy those rights.
The EAT also explained that Forstater’s gender-critical beliefs were widely shared and were also in accordance with previous decisions of UK law.
What does this mean for employers?
This decision gives gender-critical beliefs the same legal protections as religious, environmental and ethical veganism philosophical beliefs. Therefore, anyone sharing these protected characteristic are protected from unlawful discrimination and harassment.
However the EAT stressed that the judgment did not mean individuals with gender-critical beliefs could “misgender trans persons with impunity” and everyone will continue to be beholden to the prohibitions on discrimination and harassment within the meaning of the Equality Act.
It is important for employers to be mindful of the kind of workplace culture they want to promote. They will need to strike a fair balance between allowing freedom of speech and tolerating opposing beliefs and ensuring employees have a safe environment that is free from discrimination and harassment. Failure to do so, could result in the employer being liable for a potential claim either way.
As this case demonstrates that employees are generally entitled to hold gender-critical beliefs, it is important for employers to focus on the way in which employees may potentially manifest those views, so if an employee is deliberately upsetting or inciting other employees, regardless of whether that belief is protected, it does not necessarily mean that an employer should tolerate it, or do nothing.
It is therefore important for employers to review their policies and handbooks and provide training and relevant education programmes, in order to help protect both the employees and themselves.
Policies and handbooks should include wording that managers and supervisors will not treat any employee unfairly because of their beliefs and that other employees must be respectful of other people’s beliefs. Further a zero tolerance approach should be adopted when it comes to employee’s promoting their beliefs in the workplace in a way that upsets or offends colleagues which could amount to harassment, and in turn could lead to disciplinary action being taken.
Ultimately as a result of this ruling, employers need to emphasise within their workforce, the important of tolerance and mutual respect in order to promote an open, equal, diverse and inclusive environment for people to work in.