Forstater v CGD Europe and others ET/22200909/2019

In the case of Forstater v CGD Europe and others ET/22200909/2019, an employment tribunal has upheld a claim of direct discrimination on grounds of belief, where an international researcher’s contract was not renewed because she had expressed gender critical beliefs which some of her colleagues found offensive.

This decision follows an earlier Employment Appeal Tribunal (EAT) judgment where Ms Forstater’s gender critical beliefs were held to be protected as a philosophical belief under the Equality Act 2010. They included the belief that a person's sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. The claimant had described a prominent gender-fluid individual as a "part time cross dresser" and a "man in heels" who should not have accepted an accolade intended for female executives. She had also left a gender critical campaign booklet in the office (which she later apologised for) and posted a campaign video on twitter containing ominous music and imagery that stated that gender self-ID put women and girls at greater risk.

The Respondents argued that it was the way in which the claimant had expressed her beliefs, and not the fact that she held these beliefs, that had been the reason for non-renewal of her contract. The tribunal held, following earlier case law, that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate or to which objection can reasonably be taken, bearing in mind an individual's qualified right to manifest their belief under Article 9 of the European Convention on Human Rights (ECHR). In this case, the claimant's tweets and other communications were little more than an assertion of the core protected belief (which could not be objected to even though it could cause offence). On some occasions, the claimant had been provocative or mocking but this was the "common currency of debate" and was not objectively offensive or unreasonable.

It was also found that the claimant had been victimised when her profile was taken off the Respondent's website after she talked to The Sunday Times newspaper about her discrimination case. However, her claims of indirect discrimination and harassment were unsuccessful.

The above decision demonstrates that individuals will be afforded a level of protection for their philosophical or religious beliefs as long as these are not inappropriate or greatly offensive. It is however accepted that an element of offence may be present as part of a debate. Employers should be mindful of the right of employees to express their views or opinions on such issues but that it is done in a safe way with other employees who may still find it offensive. Yet, is a balancing act as workplace cultures should not develop where even asking certain questions provokes fear in staff.

A significant reason for the Respondent’s failure was its lack of a solid policy on its staff’s social media use and harassment. If they had been clearer about what their staff were authorised (or unauthorised) to post on social media, the decision may have been different. Employers should therefore ensure that they have adequate HR policies in place, including any gender reassignment policies.

Lastly, it should be noted that despite “gender critical beliefs” being considered protected, this does not change the legal protections for transgender people under the Equality Act 2010 which establishes that transgender people are protected in respect of their identity; therefore, they must not be discriminated against or harassed based on their identity. Employers must ensure that any training adequately reflects transgender discrimination as well as belief discrimination protection.

If you would like to check you have adequate HR policies and training in place, contact Sepie Nourouzi by email sepie.nourouzi@cwj.co.uk or call 01689 887 857.