Two recent employment cases regarding “gender critical” beliefs have highlighted the difficulties in this area and whether such beliefs are capable of protection under the Equality Act 2010.
Religion or belief is one of the nine protected characteristics covered by the Equality Act 2010. The Act prohibits direct discrimination, indirect discrimination, harassment and victimisation in respect of religion, religious belief and philosophical belief. Case law has established the criteria for establishing if a belief falls within the definition of a philosophical belief:
- The belief must be genuinely held;
- It must be a belief, not an opinion or viewpoint based on the present state of information available;
- It must 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.
This has often been very difficult for Tribunals to determine. For example, tribunals have held that veganism in itself is not a philosophical belief, but that ethical veganism, which affects how an individual acts in their day-to-day life, can amount to a protected philosophical belief.
In 2021, the EAT overturned the decision of the preliminary hearing at the employment tribunal in the case of Forstater v CGD Europe and others. The EAT held that “gender critical” beliefs can be a philosophical belief and are capable of protection under the Equality Act. In particular, the case considered the fifth test set out above. The Employment Tribunal had found that the belief failed on that test because the gender critical view conflicted with transgender rights and gender identity. The EAT held that the only beliefs which should be excluded by that belief are extreme beliefs such as Nazism or totalitarianism or espouse violence and hatred in the gravest form. It would therefore only be in extreme cases that the belief would fail to be worthy of respect in a democratic society. The claimant’s views in this case may offend some people but did not seek to destroy the rights of transgender people and therefore did not fall into that category.
The case was then remitted to an Employment Tribunal to determine whether her dismissal was as a result of her beliefs and the Employment Tribunal has recently published its decision. The claimant argued that she had been discriminated against in that her contract was not renewed after a series of tweets in which she demonstrated her belief that sex was immutable. The Tribunal concluded that the tweets were a substantial part of the reason why Ms Forstater was not offered employment. The respondents claimed that the beliefs had been expressed in such a way that was unacceptable and that this was the reason for the respondent’s actions. The Tribunal then had to consider whether the tweets were a manifestation of Ms Forstater’s belief to which objection could reasonably be taken or an inappropriate manner of manifesting the belief. The tribunal clarified that a mere statement of the claimant’s protected belief should not be treated as inherently unreasonable or inappropriate even if they are offensive to others. The Tribunal held that the question whether the claimant’s manifestation of her belief was such that objection could reasonably be taken to it, should be considered by reference to the overall picture. The Tribunal held that the actions taken by the claimant was within the boundaries of engaging in debate on a matter of public interest. The Tribunal held that she had been discriminated against because of her beliefs and that her tweets were a manifestation of her belief.
However, in Mackereth v DWP the EAT recently upheld an employment tribunals decision that a Christian doctor was not discriminated against on the grounds of religion or belief. In that case the claimant was a health and disabilities assessor carrying out assessments on individuals claiming disability-related benefits. His beliefs (or lack of beliefs) included a belief in the truth in Genesis 1:27 that every person is created as god as either male of female; a lack of belief in transgenderism; and a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s impersonation of the opposite sex. As a result of these beliefs he would not agree to use the preferred pronouns of transgender service users, which was conflicted with policy in the workplace. Although moves were made to accommodate his position, he brought claims in the Employment Tribunal for direct discrimination, indirect discrimination and harassment in respect of his religion or belief.
The Tribunal had found that the claimant’s beliefs were not protected under the Equality Act 2010. However, the EAT overturned the tribunal decision and held that it had erred in applying the test . Following the decision in Forstater it held that it would only be in extremely limited circumstances in which a belief would be considered beyond the pale and as such, the EAT held that the tribunal had “applied too high a threshold” when considering whether the beliefs were worthy of respect in a democratic society.
However, the EAT agreed with the tribunal that in the particular circumstances of the case, the claimant’s claims of direct discrimination, indirect discrimination and harassment on the basis of these protected beliefs failed. In particular the tribunal had found that the claimant had not suffered the acts of less favourable treatment/harassment complained of as his employer had not in fact imposed any penalty on him, but had sought to clarify and try to accommodate his position. It also held that the ET had focused on the potential manifestations of the belief rather than the beliefs themselves and that any assessor not prepared to address service users in the manner requested would be treated in the same way. As a result the claim relating to indirect discrimination could be justified as the actions taken were a necessary and proportionate way of achieving a legitimate aim.
The key point in these cases therefore seems to be the way in which the claimant’s manifested their belief. They also indicate that the cases are fact specific and to consider the belief and the way the claimant manifests that belief. Employers have to balance the different views of those in their workplace and need to make it clear to their staff what is acceptable in the workplace.