11 June 2021 #Employment
Workers philosophical beliefs are protected but can amount to discrimination or harassment in the workplace for asserting beliefs that are considered offensive.
The Equality Act 2010 covers discrimination and harassment relating to age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex and sexual orientation – these are referred to as the ‘protected characteristics’.
If a belief is found to be a philosophical belief, then the individual has a right to not be discriminated against for having that belief under the Equality Act 2010. However, employers can be vicariously liable for discrimination and harassment committed by their workers/employees.
In the recent case of Forstater v CGD Europe and ors, the appeal tribunal held that a gender-critical belief that sex is immutable is a philosophical belief. The belief that sex is immutable is not the same as gender identity. The appeal tribunal was very clear that they do not agree with any view in the trans-gender debate. Their job was to clarify the steps required for a belief to be a philosophical belief under the law. Ms Forstater was a visiting fellow for CGD, a British American think tank, she was contracted on consultancy agreements. She was popular on Twitter and made tweets asserting her belief that sex is immutable.
Her tweets were considered offensive to her peers, an investigation was performed by CGD, and it was decided that Ms Forstater’s contract would not be renewed. Ms Forstater brought employment tribunal proceedings, one of her arguments was that she was dismissed for her philosophical belief that sex is immutable and the dismissal was discriminatory.
The tribunal held that Ms Forstater sex is immutable belief was ‘not worthy of respect in a democratic society’. Ms Forstater lost at first instance, and she appealed. The appeal tribunal held that the tribunal erred in their decision that Ms Forstater’s belief was not worthy of respect in a democratic society. Ms Forstater was not the only person who held this view, leading academics also held this view, and the belief was not trying to destroy trans gender rights. Further, sex being immutable, and binary is consistent with the law. The appeal tribunal held that the sort of beliefs that would fail would be ideas similar to “Nazism or totalitarianism”.
It is clear that the appeal tribunal listened to arguments against Ms Forstater succeeding. They made it clear that their decision does not mean transgender persons do not have anti-discrimination and harassment protections. They also made it clear that those with Ms Forstater’s belief could not mislabel a person’s identity with impunity.
Our employment team regularly advises clients on workplace discrimination legislation and can assist clients with defending discrimination claims.