In the landmark judgment of Forstater v CGD Europe and Others, the Employment Appeal Tribunal (EAT) has ruled that a gender critical belief is a protected philosophical belief under the Equality Act 2010.

Background

The Equality Act 2010 provides protection against various forms of discrimination on the basis of an individual’s philosophical beliefs. In this case, Ms Forstater was engaged by CGD as a consultant. During the engagement, she was involved in a public dispute on twitter where she expressed her gender critical views. This included her view that transgender women could not change their biological sex. Ms Forstater’s colleagues found these tweets and complained to CGD, branding her a transphobic. CGD investigated the matter with Ms Forstater and decided not to renew her contract. As a result, Ms Forstater issued a claim on the basis she had been discriminated against because of her gender critical beliefs.

This matter was heard before an Employment Tribunal in 2019 and, at this first instance decision, it was decided that Ms Forstater had not been directly discriminated against for holding gender critical views because those views were not considered a protected belief and ‘were not worthy of respect in a democratic society’. Ms Forstater appealed to the EAT.

The Decision

The EAT found that the Tribunal had erred in law and ruled that having a gender critical belief could be considered a philosophical belief and should be protected under equality legislation.

When deciding whether Ms Forstater’s views amounted to a philosophical belief, the EAT considered the five stage ‘test’ as set out in the case of Grainger PLC v Nicholson. This being:

1. The belief must be genuinely held
2. The belief must not simply be an opinion or viewpoint based on the present state of information available
3. The belief must concern a weighty and substantial aspect of human life and behaviour
4. The belief must attain a certain level of cogency, seriousness, cohesion and importance and
5. The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

The EAT was clear in its judgment and explained that Ms Forstater had a common belief which did not seek to undermine transgender people and, although some may not agree, the belief was still worthy of protection. The EAT went on to say that only views akin to Nazism or totalitarianism were unworthy of protection for the right of freedom of expression or thought. The EAT added, within its judgment, that it had not taken sides in the ongoing debated topic and that any people with the protected characteristic of gender re-assignment should not feel undermined by the outcome.

This matter will now return to the Employment Tribunal to determine whether Ms Forstater was discriminated against because of her protected belief.

Summary

This case first drew media attention last year after JK Rowling was publicly criticised for agreeing with Ms Forstater’s view. It is therefore no surprise this judgment has again attracted such a high level of interest and is likely to cause ongoing debates.

This judgment has placed a much narrower interpretation on what may be considered a philosophical belief and it is, therefore, a useful reminder for employers that even if an individual’s views have the potential to offend, those views may still be protected under the Equality Act. It is important that, going forward, employers are careful in balancing protections of all individuals when disciplining controversial opinions.

This is a difficult area and one that both employers and HR practitioners may find challenging to navigate. Employers may be liable for any discrimination or conduct in the workplace which may amount to harassment or discrimination on the basis of, for example, a philosophical belief. It is therefore important that employers have a proactive approach to dealing with discrimination issues. From educating employees through training, to clear policies and a strong clear stance to how unacceptable behaviour in the workplace will be dealt with. This also requires clear ‘top-down’ buy in to ensure all levels of the business understand and recognise how to deal with matters of this nature.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

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