Freedom of Expression versus Offending Others?

Jan 31, 2024

The recent judgment in Phoenix v The Open University saw the Employment Tribunal uphold the majority of Professor Phoenix’s claims against her former employer for direct discrimination, harassment, victimisation and constructive dismissal stemming from her gender critical beliefs. The decision follows a prolonged campaign by her colleagues who opposed Professor Phoenix’s personally held gender critical views and academic research.

Background

Professor Phoenix holds gender critical beliefs; her beliefs are that biological sex is real, that it is important, that a person cannot change their biological sex and that sex is not to be conflated with gender identity. In particular, Phoenix’s beliefs are that there are occasions when biological sex is more important than gender identity, for example she believes that people who are biologically male should not be housed in female prisons, irrespective of how they identify.

Phoenix rejoined The Open University in August 2016 as professor of Criminology. In 2019, the Sunday Times published an open letter signed by Phoenix and other academics making her gender critical beliefs widely known. This resulted in her being subjected to numerous counts of harassment, including being likened to ‘a racist Uncle at the Christmas dinner table’ by a colleague, and subjected to less than favourable treatment.

In June 2021, Phoenix and three others established the Gender Critical Research Network (GCRN). This was a network intended to promote research into sex, gender and sexualities from a gender critical standpoint.  The affiliation of The Open University with the GCRN triggered 368 colleagues signing an open letter calling for the disaffiliation of the GCRN and accusing Ms Phoenix and her network of transphobia.

Phoenix went on to receive a barrage of bullying and harassment from colleagues and students, including receiving death threats. The Open University failed to intervene to stop or prevent the harassment against her and six months later, she resigned, claiming constructive dismissal.

Legal principles

The test for whether or not a person’s belief can be protected under the Equality Act 2010 is found in the Grainger criteria (a summary of which can be found here). The extent to which gender critical beliefs meet these criteria was first set out in the widely publicised case of Forstater v CGD Europe whereby the Employment Appeal Tribunal held that gender critical beliefs, although subject to enormous controversy, could amount to a ‘protected belief’.

Recent judgments in this area have shown us that it is fairly clear-cut whether a belief will meet the Grainger criteria, as they did, without much deliberation, in the case of Phoenix. There is a distinction between the person holding their belief and the manifestation of the belief itself. Accordingly, the Employment Tribunal will look at whether the person manifests their belief in an objectively inappropriate way so as to incite hate or cause provocation. The question therefore turned to whether Phoenix was reasonably expressing her views or crossed the line into bullying or harassment.

Decision

In looking at the manifestation of Phoenix’s belief, the Employment Tribunal held that the setting up of the GCRN and Phoenix’s consequent association with the GCRN was part of her gender critical belief. The reason for setting up the network was within the core of her beliefs that sex is immutable and not a social construct. When applying the factors in the recent case of Higgs (a case which set out factors that might be taken into account in determining whether manifestation of a belief is so objectionable as to justify action taken by the employer), the Employment Tribunal concluded that the balance lay in favour of Phoenix’s exercise of her right to manifest her beliefs in the setting up and association with the GCRN.

The Employment Tribunal ultimately determined that Ms Phoenix was constructively dismissed, as The Open University breached the implied terms of trust and confidence in her employment contract and in the duty to provide her with a suitable working environment. This was made clear by employees of The Open University contributing, signing and publishing the letter as well as the numerous harassing tweets and other well-founded examples of harassment and less favourable treatment by The Open University.

Take home points for employers

Compared to other notable gender critical belief discrimination claims, this case was particularly interesting due to the complexity of balancing academic freedom. The Employment Tribunal themselves noted that the nature of research in academia means pushing boundaries and venturing into areas that would challenge societal norms, particularly when seeking funding for research. So, controversy in academia is not unusual. Ms Phoenix’s primary purpose is research. The Employment Tribunal considered that Ms Phoenix was entitled to expect The Open University to uphold its obligation and duty to ensure academic freedom.

This case, like many of the gender critical belief cases, showed the complex balancing act of employment rights in the workforce relating to gender identity. From this case, employers should reflect upon the fact that circumstances where a majority of employees disagree with a person’s belief should not supersede that person’s right to freedom of expression, where that expression is not targeted, bullying or harassing. Although many might disagree with Phoenix herself, that is not the issue here. The issue was that she was unable to express her beliefs without receiving a bombardment of harassment and less favourable treatment.

This case is also a further example of the shift we are seeing in such cases when the key consideration is no longer whether the belief is capable of protection, but rather whether the manifestation of that belief was done in an appropriate way.

If you would like to discuss any of the points within this article, please ​contact us to speak to a member of our Employment team.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Darren Smith

Darren Smith

Partner, Employment Law

Alice Finniear

Alice Finniear

Trainee Solicitor

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