Comments regarding transphobia ultimately lead to constructive dismissal

In the case of Islam-Wright v Arts Council England and Ashcroft, the claimant was a relationship and diversity manager. The Arts Council (AC) awarded a grant to the Lesbian, Gay, and Bisexual Alliance (LGB Alliance), and although AC was not involved in the decision to make the award, AC staff members raised concerns expressing the view that LGB Alliance was transphobic. The claimant posted a comment on an internal spreadsheet, comparing those with gender critical views to racists. The claimant’s comment was in response to a comment from an unnamed colleague.

The claimant was subsequently required to attend a disciplinary investigation, and she resigned when she received notification of the intention to progress the matter to a disciplinary hearing.? The claimant claimed constructive unfair dismissal and victimisation.

ET Decision: The ET accepted that AC had grounds to view the claimant’s comment as a concern.

The ET noted that the usual first step under AC’s disciplinary policy was to decide whether the action amounted to sufficiently serious misconduct to mean that informal resolution through discussion with a line manager was inappropriate. Only in instances of serious or gross misconduct was the first step to implement the formal process. AC had progressed the matter straight to a disciplinary investigation, bypassing the claimant’s line manager. ?However, the disciplinary invite letter suggested that a warning was the highest sanction to be applied, implying that the allegations did not amount to serious/gross misconduct. The ET was of the opinion that if the claimant’s line manager had sat down with the claimant to talk through her comment and its impact, it would have been clear that the comment was hasty and ill-thought out but clearly not intended to cause the hurt and upset which it did.

The claimant was constructively dismissed. The investigation invite came out of the blue from HR rather than from the claimant’s manager, and that action damaged the employment relationship. The ET also found that other actions during the process also damaged the relationship.

The victimisation claim failed because the claimant could not prove that showing support for criticisms of anti-trans views amounted to a protected act.

Key takeaways

ET judgments are not legally binding precedents, but this case is a reminder of importance of following internal policies and procedures. A careful balanced assessment should always be carried out and employers should not feel pressured to immediately progress to formal action.

Employers should also think about possible resolutions where there appears to be a clash of views, and this may involve discussions with both parties to establish an understanding of how one person’s views can negatively impact others.

For further information or assistance please get in touch with a member of our Employment, Pensions & Immigration team.