What happens when the rights of people with different protected characteristics potentially clash?

The latest, much-publicised Tribunal decision in the case of Forstater -v- CGD Europe & others deals with the extent to which an employee holding ‘gender-critical’ beliefs is protected from less favourable treatment, a topic which is also addressed in Mackereth -v- Department of Work and Pensions

Ms Forstater was a visiting fellow at a thinktank but her contract was not renewed following complaints by other employees about tweets and other conduct relating to her beliefs that sex is immutable and should not be conflated with gender identity. She brought Employment Tribunal proceedings asserting that her beliefs (which were referred to in the proceedings as ‘gender-critical’ beliefs) are protected philosophical beliefs under the Equality Act 2010 and that she had been discriminated against because of them. At a hearing last year, the EAT confirmed that her beliefs were protected characteristics and her case was remitted to a fresh Employment Tribunal, which had to consider whether she had been discriminated against because of them.

The Tribunal has just confirmed its decision that Ms Forstater was less favourably treated because of her philosophical beliefs. In reaching this decision, it considered many of her tweets and comments, which included her stating that: “I don’t think people should be compelled to play along with literal delusions like trans-women are women” and that self-identification is a “feeling in the head”; her drawing an analogy between self-identifying trans women and a white American woman who misrepresented herself as black; and her referring to an individual who identified as a woman for part of the week as a “part-time cross-dresser”.

It was argued that these comments equated gender self-identification with mental illness and were unreasonably mocking. However, despite acknowledging that they could have been expressed in more moderate terms, the Tribunal concluded (by majority decision) that they were simply an assertion of Ms Forstater’s gender-critical beliefs and did not amount to “an objectionable or inappropriate manifestation of her beliefs”. This was important as it would otherwise have opened up the question as to whether her treatment was on the grounds of her conduct rather than her beliefs.

The judgment in Forstater follows the recent EAT decision in Mackereth, which involved a Christian doctor who does not believe in transgenderism and believes that sex/gender cannot be changed at will. Mr Mackereth was required by the DWP to refer to transgender benefit claimants by their preferred pronouns, which he claimed constituted direct and indirect discrimination and harassment on the grounds of his religious or philosophical belief.

The EAT decided that the original Tribunal was wrong to conclude that Mr Mackereth’s beliefs did not constitute a protected characteristic. However, it agreed that he had not been directly discriminated against or harassed because of such beliefs. It also agreed with the original Tribunal that the imposition of a requirement to use preferred pronouns was a necessary and proportionate means of achieving the DWP’s legitimate aims of: ensuring transgender service users were treated with respect and in accordance with their rights under the Equality Act 2010; and providing a service that promoted equal opportunities.

Conclusions

Tribunals have for some years had to consider how to ensure the exercise of rights afforded to individuals with particular protected characteristics (such as, religious or other philosophical beliefs) does not result in others with different protected characteristics (such, sexual orientation or gender reassignment) being subjected to unlawful discrimination. The Tribunal and EAT were careful to stress in the cases above that their decisions were simply based on the facts before them and should not be taken as any view on the transgender debate or suggest that transgender people do not have protection against discrimination and harassment under the Equality Act 2010. Nevertheless, it is possible to draw some conclusions.

Firstly, a formal social media policy, setting out the boundaries on what employees can say on social media platforms linked to their employment, could have avoided the issues that arose in Forstater. CGD apparently considered introducing a policy after the complaints had been made but decided against it, without any real explanation. This lack of clarity as to what was acceptable made it more difficult for CGD to argue that its treatment of Ms Forstater arose from her conduct in manifesting her beliefs and was a contributing factor in the Tribunal deciding that it was the beliefs themselves that led to her treatment.

Secondly, the Tribunal in Forstater appears to have attached significant weight to the fact that CGD did not give Ms Forstater an opportunity to participate in the ‘investigation’ into the complaints or take account of the steps she had taken to address the concerns raised. These included: attaching a disclaimer to her ‘main’ Twitter account and setting up an anonymous account for her gender-critical comments; confirming that she would not initiate conversations about gender-critical subjects in the workplace; and agreeing to diversity training and to a mediated meeting with the complainants. This again supported the conclusion that it was what were considered to be her ‘offensive’ beliefs, not the actions she took as a result of them, which led to her contract not being renewed.

Finally, it is clear from Mackereth that Tribunals will be sympathetic to employers who give proper consideration to the requirements they impose on employees and the potential consequences of such provisions, criteria or practices, and engage with them to seek compromise. When faced with Mr Mackereth’s confirmation that he would not use the preferred pronouns of transgender benefit claimants, the DWP engaged with him to consider how it might be able to accommodate his position. It was only after it concluded that there was no alternative less discriminatory means of achieving its aims that Mr Mackereth’s employment was terminated.

It may be prudent for employers to review their equal opportunities and social media policies in light of these cases. It is also important to give careful thought to and take advice on any actions taken in what remains a very complex and potentially controversial area of employment law.