June 11, 2021

Equality at Work – challenges facing employers

David Dixey, an employment lawyer in Essex with Holmes & Hills, discusses the challenges employers face when seeking to meet their obligations under the Equality Act.

A recent Employment Appeal Tribunal (EAT) case has again highlighted the challenges faced by employers as they seek to implement their obligations under the Equality Act (ensuring protection of all employees or workers), in circumstances where employees may hold conflicting opinions about certain matters, such as gender.

In 2018 Maya Forstater posted on her personal Twitter account challenging the view that it was possible for someone to change sex; she also criticised proposed amendments to the Gender Recognition Act.

Maya Forstater was a researcher and working as a consultant with CGD Europe. Following her tweets Ms Forstater was told she would not be offered further consultancy work. She brought an Employment Tribunal claim in 2019 arguing that her views were worthy of protection under the Equality Act, which covers philosophical belief in addition to protecting the rights of other groups. She told the Tribunal that she believes there are only two sexes in human beings and that it is impossible for a person to change sex.

The Employment Tribunal dismissed her claim, stating that her views were “not worthy of respect in a democratic society”.

She appealed to the Employment Appeal Tribunal which last week ruled that her views on gender constituted a philosophical belief and were therefore deserving of protection under the Equality Act. By not having her consultancy contract renewed because of her tweets she had been potentially unlawfully discriminated against.

The EAT judgment stated:

The Claimant’s belief might well be considered offensive and abhorrent to some, but the accepted evidence before the original Tribunal was that she believed that it is not ‘incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender’. That is not, on any view, a statement of a belief that seeks to destroy the rights of trans persons. It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether.”

The case will be returned to the Employment Tribunal for rehearing, now the EAT has ruled on a preliminary point, namely that Ms Forstater’s beliefs were worthy of protection under the Act. This highlights the likely difficulties employers may face when dealing with complaints from employees holding conflicting beliefs and how carefully they will need to be investigated.

The judgment seeks to draw a distinction between holding (and even expressing) a controversial opinion and actually discriminating against or harassing others who are also entitled to protection due to a protected characteristic.

The EAT ruled that gender critical beliefs are worthy of legal protection (like religious or philosophical beliefs), even if they may cause others offence. It concluded that expressing such beliefs does not interfere with the rights of trans people.

The decision is likely to be controversial, but does provide legal clarification, and highlights the challenges facing employers as they strive to provide an environment of equality and diversity for all. If you are an employer and require advice regarding this or any other employment law issue contact David Dixey 01206 593933.

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