How should employers approach the conflicts in belief relating to religion, a belief that sex is immutable and transgender and gender identity?
Matt Huggett
Partner, Stephens Scown | Past President and Non-Executive Director, CILEX | Chartered FCIPD
Transgender and gender critical beliefs ('misgendering') have been subject to a number of recent employment tribunal and EAT decisions.
This is a complex and sensitive area of law and social policy where views can often be in conflict with the beliefs of others. A number of cases have, as a result of this conflict, been addressing the extent of the right of people to express their views and opinions which may offend or upset others. ?The highest profile recent case that we have seen in this area in recent months was Forstater v CGD Europe.
This is a case that you may have seen widely reported following the support given to Ms Forstater by the author JK Rowling.
In the Forstater case, the Claimant expressed her beliefs and concerns about proposed amendments to the Gender Recognition Act 2004 on Twitter. Her colleagues then raised concerns with their employer that her comments were transphobic. As a consequence, her contract to work for the Respondent was not renewed. She brought a claim of discrimination against CGD Europe on the basis that her contract had not been renewed because of her belief that sex was biologically immutable. She would not accept in any circumstances that a trans woman was in reality a woman or that a trans man was a man.
In the original ET hearing, her claim failed. In order to assess whether she had a protected belief, the tribunal had to apply the test set out in Granger plc v Nicholson, namely:
They concluded, applying the test, that her belief was not "worthy of respect in a democratic society" and was in "conflict with the fundamental rights of others".
The EAT disagreed. They said that tribunals bear in mind that it is only those beliefs that would be an affront to those with protected characteristics in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society.
"Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection."
Where does leave employers?
So, the Forstater case clearly sets out some protection for individuals who have a belief that sex is immutable and that only a woman born as a woman can have the sex of a woman and that only a man born as a man can have the sex of a man.
Employers now have the unenviable task of balancing these rights, protections and beliefs as a result of this case. After all, whilst Ms Forstater may have been successful in her case concerning the non-renewal of her contract because CGD Europe did not welcome the beliefs that she was expressing in social media, it does not follow that everyone with the same beliefs has free reign to say what they want and nor does it mean an employer will not be at risk of a harassment claim from a transgender employee in circumstances where someone expresses views which cause offence.
Returning to the section 26 of the Equality Act 2010, this clearly sets out the protections that transgender employees have:
26?Harassment (1)??A person (A) harasses another (B) if—(a)??A engages in unwanted conduct related to a relevant protected characteristic, and (b)??the conduct has the purpose or effect of—(i)??violating B's dignity, or (ii)??creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The rights of employees who may be gender fluid or who may be transgender were quite starkly (and rightly in our view) set out in the case of Taylor v JaguarLandRover. In this case, compensation of over ￡100,000 was awarded to a long serving engineer of JLR who had been subjected to transphobic harassment during her employment. Although it is a long judgment, I recommend you read it (link below). It is a well written judgment that is easy to read and highlights how poor management and a lack of strategic approach to an employee who is transgender can cause such practical and legal difficulties.
As an employer, we therefore must ensure that even though someone like Ms Forstater may have her views about gender identity and transgender issues, that we take steps to ensure that she does not express those views in a way that is offence to transgender employees, to someone such as Ms Taylor. This is, potentially, a very tricky balance for an employer to achieve. But it is one that we have had to address before. There has been conflict for many years between that of religion and sexual orientation - one that we have seen to be still played out in the courts as recently demonstrated in the "gay cake" case in Northern Ireland.
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How employees "manifest" their views and opinions should become the focus for employers
This then turns to the issue of how employees 'manifest' (or express) their views about gender identity and transgender issues. The very recent case of Mackereth v Department for Work and Pensions becomes a key example of this principle.
Dr Mackereth assessed people for disability-related benefits. The policy of DWP was for him to address transgender individuals by their preferred pro-nouns. He was a Christian who had also previously worked full time as an evangelist.
During the induction for the role as a Health and Disability Assessor he objected to the policy of DWP regarding the use of preferred pro-nouns on the basis of his religious belief in Genesis 1:27. He also stated that as a consequence of his belief in Genesis 1:27, that he had a lack of belief in 'transgenderism'.
So God created mankind in his own image, in the image of God he created them; male and female he created them.
Genesis 1:27
As in the Forstater case, the original Employment Tribunal concluded that Dr Mackereth's beliefs were not protected under the Equality Act. They concluded that (under the Grainger test) that his beliefs were not "worthy of respect in a democratic society" and were not protected.
Following the Forstater decision in the Employment Appeal Tribunal though, the EAT concluded that this was wrong and that his beliefs were protected. They said:
In a pluralist democratic society it was necessary for the threshold to be set at a low level so as to allow for protection not just of beliefs held to be acceptable by the majority but also of minority beliefs, even where those beliefs might offend others
They then proceeded to look at how Dr Mackereth 'manifested' his beliefs. Dr Mackereth had refused to use the preferred pro-nouns of those people that he would be assessing. This gravely concerned the DWP as the reason that the policy (to address individuals by their preferred pro-nouns) was in place was to avoid the potential harassment or discrimination of their service users. This would be the same for an employer who may have a clear policy in place in reference to their employees rather than service users.
The EAT found that any individual (whether they shared Dr Mackereth's beliefs or not) would have been treated in exactly the same way because of their underlying requirement to avoid the harassment and discrimination against service users. There is therefore (clearly) a very clear distinction between beliefs that someone may hold and the way that they wish to manifest or demonstrate those beliefs.
The judgment also concluded that it was not indirect discrimination against those who share Dr Mackereth's beliefs to have a rule in place to ensure that service users were addressed by their preferred pro-noun. The DWP had a legitimate aim (to protect service users from harassment and discrimination). There followed a careful assessment by the ET and the EAT of whether the steps taken by the DWP to prevent that harassment was proportionate in all the circumstances and they agreed that it was not proportionate to enable Dr Mackereth to avoid assessing transgender service users.
For these reasons, Dr Mackereth's claim failed.
What does this mean for employers?
Employers have a difficult balance to achieve. Employees are permitted in law to have a freedom of expression. As an employer we then need to balance the extent (the manifestation) of those beliefs that they are permitted to express when balanced against the protection that we want to afford to those who may be offended by the expression of those beliefs.
There are clearly going to be more tribunal cases in the area. This will be particularly so given that there is arguably a divisive trend in society ("woke" vs non-"woke") regarding the extent to which we should be permitted to say what we want. The woke vs non-woke argument is legally one of freedom of expression balanced against the protecting groups who need to be protected by offensive comments in relation to that freedom of expression.
The recently muted call from some areas of the government to fightback against the 'diversity industry' earlier this month and a demand that Whitehall 'cut the wokness' is not, in our view, a helpful contribution to this issue.?
Such noises are unhelpful. The reason for this is that, in law, unless employers have a clear policy and undertake training to educate employees, they will never be able to successfully run the "reasonable steps" defence set out in the Equality Act at section 109, which states as follows:
s. 109 Liability of employers and principals (4)??In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a)??from doing that thing, or (b)??from doing anything of that description.
We would therefore strongly encourage employers to ensure that:
In fact, I would say that to educate employees is more important than ever before given the wider social discussion that is happening in relation to this issue.
30 August 2022