On and off social media platforms, the debate on sex and gender has become polarised. According to the government’s tribunal decisions portal, there have been 14 decisions in the space of less than two years, and several of them have made national news headlines.
The most prominent of these cases was an award of more than £100,000 against an organisation which was found to have unlawfully discriminated against an individual after it did not offer her an employment contract or renew her visiting fellowship because she had expressed gender-critical views on her Twitter account. Later prominent cases include that of a barrister who won a case against her employer, after losing work due to her involvement with the LGB Alliance Group.
Tribunal’s advice
But it was an instruction by the judge in the recent case of a social worker who was suspended and subjected to a long disciplinary process by both her employer and her professional regulator for sharing a link to a petition to the International Olympic Committee that male athletes should not compete in female sports, as well as another petition on women’s rights to sex-based protections, such as female-only hospital wards, that should prompt employers to consider how they deal with contentious beliefs at work.
The tribunal found that the nature of the disciplinary process constituted harassment, ruling that her social media posts “fell within her protected rights for freedom of thought and freedom to manifest her beliefs as protected under Articles 9 and 10 of the Human Rights Act”. Compensation was awarded and the judge ordered all managers and HR staff in both organisations to receive training on the freedom of expression and protected belief.
Contentious issue
One of the reasons that compensation was so high in this case was the fact that the employer “should have known better” in the light of these recent decisions. The rise in claims like these shows that more and more beliefs are being deemed as worthy of protection under the Equality Act – and inevitably, if more beliefs and rights are protected, that raises the potential for those thought systems to come into conflict.
The way the Equality Act is drafted leaves it open that many types of belief are worthy of protection, as long as they meet the five-step test that shows they meet the requirement as follows:
• the belief must be genuinely held.
• it must be a belief and not simply 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.
• it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
Difficult balance
The biggest lesson that should be taken from the most recent cases is that when it comes to the contentious debate over gender identity, employers need to think in terms of balancing conflicting rights, rather than viewing their role as protecting one group (those with the protected characteristic of gender reassignment) from discrimination by another (those with gender critical views).
Stay neutral
So for an employer celebrating LGBTQ staff or hosting a Pride march, could it be argued that supporting staff with gender-critical beliefs goes against those efforts? Can an employer celebrate different identities without aggrieving others? It’s more of a tightrope than before – as an employer you must try to avoid being seen to be in one camp or another, to be taking sides.
The recent decisions make it clear that someone can hold a gender-critical belief but this does not mean people could be transphobic or misgender people. The key is to have a framework where people know they will be treated with dignity and respect even if their belief comes into conflict with those of someone else. A balanced approach is essential.
Expressing a view is lawful provided that the manner in which it is expressed does not cross the line into harassment or discrimination. It does not matter if that view is unfashionable, unpopular or considered by some to be objectionable, as long as no harassment or discrimination arises.
Training and culture
Training can be a good opportunity to engage with employees in how to foster a non-discriminatory work culture – for example, training on unconscious bias is underutilised but can provide individuals with personal insight about how we make judgments about others and how to prevent discrimination. Organisations play a critical role in creating a culture where it’s okay to discuss beliefs in an open and sensitive manner but understand that all opinions are valid.
Employers should advise employees as to their internal processes for raising any concerns and the support that will be given to them, with a view to resolving issues in a collaborative way. Employers should also make employees aware of their expectations with regard to discussion of sensitive topics and the potential consequence for engaging in such debate.
Looking forward
A further consideration is that, from October this year, employers will come under an obligation to prevent workers from harassment under the Worker Protection Act, so it is important to remind staff of what is acceptable. This new law carries with it a potential 25% uplift in compensation at tribunal, so these policies should not just be in a handbook on a shelf, but managers should be reminding staff about their obligations to be respectful.
However, the recent decisions in gender-critical cases could result in a decline in their frequency because it is increasingly clear to employers that such beliefs are protected. The law is clear that so-called ‘gender-critical’ beliefs are protected provided they are contained within a reasonable expression. Harassment continues to be outlawed but as with nearly all cases about belief, the outcome will very much depend on the particular facts.
Please email nicola.goodridge@goodhr.co.uk or call +44 7917878384 for any advice or assistance.