Last year, we wrote about the case of Forstater v CGD Europe – following an EAT decision that gender-critical beliefs were protected philosophical beliefs under the Equality Act. The case was then sent back to the Employment Tribunal to determine whether Maya Forstater had been discriminated against on the grounds of those protected beliefs.
An over simplified version of the facts is as follows:
- Ms Forstater expressed gender-critical beliefs online and in the workplace.
- CGD Europe received complaints in relation to this.
- It then took the decision not to renew Ms Forstater’s contract.
- Ms Forstater argued, amongst other things, that this constituted direct discrimination because of her philosophical beliefs.
For a more detailed overview of the case please see our previous blog here.
The Tribunal ruling
In short, the Tribunal ruled that CGD Europe directly discriminated against Ms Forstater in not renewing her contract because of her protected gender critical beliefs. The employer could not advance a rationale for the non-renewal of the Claimant’s contract and so the Tribunal was entitled to infer that it was “because of” her belief on the evidence.
In coming to their conclusion, the Tribunal once again considered the distinction between the holding of a belief itself and the “manifestation” (in other words displaying) of that belief. Direct discrimination cannot be justified, but the Tribunal ruled that an employer could justify taking action if it was doing so on the basis of the manifestations of a particular belief where those manifestations were “objectionable”. In this scenario, such action would not constitute direct discrimination. Even if it feasibly could constitute indirect discrimination (which is debateable in itself), it is possible to potentially defend indirect discrimination on justification grounds.
Here, however, the Claimant’s articulation of her views was not held to be objectionable and, in the Tribunal’s view, did not justify the non-renewal of her contract. As a result, the Tribunal felt that it was not possible to separate the articulation of those views from the belief itself, whereas this was likely to be possible where views had been expressed in a much more objectionable way.
When can an employer discipline an employee for comments about their personal beliefs?
It is clear that, whatever the particular protected belief happens to be, an employer will be able to take disciplinary action where that belief is manifested in an objectionable or inappropriate way. Following the decision in Forstater, a number of tentative (reflecting that it is only a first instance decision) conclusions can be reached in this regard.
First, it does seem that an employer is less likely to be able to justify disciplinary action if the expression of a relevant belief:
- Comments on a political issue.
Strong protection is afforded to manifestations of political speech. The Tribunal in Forstater stated that “mocking or satirising” opponents is part of the normal course of political debate and is therefore unobjectionable.
- Relates to the “core” of a belief.
The Tribunal noted that the pamphlet Ms Forstater brought in purporting that allowing those of the male biological sex who identify as trans access to female only spaces posed a risk to women was not offensive. This was because the Tribunal ruled it was the expression of “the core gender-critical belief and was not objectively offensive”.
The idea of the “core” of a belief is a novel one and not found readily in other case law. The most logical explanation is that an employer cannot adopt a policy that is so restrictive it is tantamount to a ban on the belief itself.
- Is “not an objectively unreasonable observation”.
In relation to a different tweet by Ms Forstater on the danger posed by allowing those of the male sex access to female only spaces, the Tribunal noted this was not an “objectively unreasonable observation” even though it could cause offence. What exactly this means for future cases is not clear.
- Is not associated with the workplace.
An employer is more likely to be able to discipline safely the more closely linked the social media account is to work or if there is likelihood of reputational damage to the employer. The Tribunal held that by using a Twitter disclaimer saying “all tweets are my own” Ms Forstater “substantially mitigated” the risk of reputational damage to her employer.
This is in contrast to the earlier case of Higgs v Farmor’s School in which the Claimant’s potentially transphobic Facebook posts were seen by parents of the school in which she was working.
Second, an employer is more likely to be safe in taking disciplinary action where the expression:
- Indicates the employee will not respect a trans person.
The case law suggests an employer may discipline an employee if the manifestation impacts whether or how they will perform their job alongside a particular individual. In the recent case of Mackereth v DWP the EAT accepted that an employer was justified in dismissing an employee who refused to refer to trans persons by their preferred pronouns, as the employer had a legitimate objective to ensure delivery of its service to potentially vulnerable users.
- Indicates that the employee would treat trans people differently.
In McFarlane v Relate Avon Ltd, an employer was justified in dismissing a Christian therapist who said he would refuse to provide his services to homosexual couples as it was against his religion. The Court of Appeal and subsequently the European Court of Human Rights, held the employer was justified in needing to protect the rights and freedoms of others. This may apply to cases where an employee indicates that trans people should be refused a particular service.
- Is part of a course of harassment.
That is to say the employee making the representation is doing so with the purpose or effect of creating a hostile, threatening, humiliating or degrading environment for an employee who has or is associated with the protected characteristic of gender reassignment. For more on workplace harassment see our previous blog.
A note of caution should be raised about the finding in Forstater that it was “objectively reasonable” to say that men might use trans status as a cover for abuse. It may have been acceptable in the context of a debate talking in the abstract, but a baseless accusation to an individual trans employee may constitute harassment justifying disciplinary action. As the Tribunal in Forstater noted, it is an inherently fact-dependent question.
What should employers do?
Employers can only dismiss an employee expressing specific protected beliefs where they are doing so in a manner which is objectionable or inappropriate. Care must, however, be taken if considering such action and the thrust of the Forstater judgment seems to lean more on the side of freedom of expression than deference to the employer. What should employers do in light of this?
- Review your social media and equality, diversity and inclusion policies. Ensure that employees are clear of the expectations you have of them when using private social media. For tips about drafting an effective EDI policy see our blog here.
- Consider using a panel for any disciplinary hearing. This reduces the risk of one particular manager who disagrees with a statement deciding on disciplinary action where it may be unsafe to do so.
- Stay up to date. The law in this area is developing extremely rapidly. Keep your policies under regular review to minimise the risk of them becoming out of date.
With many thanks to Alex Evans, a current paralegal in our Employment team, for co-authoring this blog.
If you require further information about anything covered in this blog, please contact David Hunt or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2022