Two cases this month illustrate the challenges employers face in relation to employees expressing or manifesting beliefs on sensitive topics which have the potential to upset or cause offence to colleagues.  Previous case law has established that the potential for offence will not prevent philosophical beliefs from being protected within the Equality Act, with the limited exception of beliefs akin to espousing Nazism or totalitarianism (see here).  The focus then shifts to whether an employee’s expression or manifestation of their belief is to be treated as indissociable from the belief, so that detrimental treatment on those grounds falls within direct discrimination provisions and therefore cannot be justified, or alternatively falls within the indirect discrimination provisions where treatment can potentially be justified.

Difficult questions can arise as to which limb applies to different belief-based actions, whether it be explaining one’s belief to others in various ways (on ‘private’ social media or in the workplace, proactively or responsively, in an attempt to persuade others to agree or in furtherance of a belief in the duty to proselytise), or refusing to say words or endorse messages which conflict with the belief, or adopting certain behaviours or customs for example in relation to dress, food or prayer.

Most of these types of action have been viewed as separable from the belief itself, such that employer prohibition or discipline for the action is treated as a policy applicable to all employees but which potentially indirectly discriminates against those holding the belief. The issue then becomes whether the policy is justified as a proportionate means of achieving a legitimate aim.  This was the analysis in Mackereth v DWP, where the EAT held that the employee’s refusal to use a trans service-user’s preferred pronoun was a manifestation of his gender-critical belief which could be distinguished from the belief itself.  The employer’s response to it was therefore potential indirect discrimination, capable of justification.

On the facts, the employer’s policy, of requiring those who were meeting and assessing trans service-users for disability benefits to use their chosen pronouns, was justified.  The policy was no wider than necessary as it only covered employees’ dealings with trans service-users, it avoided a potentially significant adverse effect on the users (given that the reason for being assessed was likely to be that they were suffering from a mental health condition such as depression, which would likely be exacerbated by a failure to use their chosen pronoun), and the employer looked for alternatives to accommodate the claimant but found there to be no practicable alternatives (as it would often not be possible to identify trans service-users in advance of the appointment).  Notably the claimant was not able to argue that he should have been allowed to use a trans service-user’s preferred name instead of a pronoun as he had not argued this before the tribunal.

In Maya Forstater v CGD Europe the tribunal upheld claims that CGD’s decision not to offer the claimant full employment and renew her Visiting Fellowship was unlawful direct belief discrimination following her expression of gender-critical views on Twitter.  It rejected the argument that direct discrimination only covers detriment because an individual (mutely) holds a particular belief and that any expression of the belief should fall within the indirect discrimination limb.  Instead, the tribunal concluded that direct discrimination would cover treatment both because of holding the belief and also for manifesting it in a way to which objection could not be justifiably taken.  A mere straightforward statement of a belief cannot be inherently unreasonable or objectionable, otherwise in reality protection for belief would be meaningless.  Something more than merely stating the belief will be required before the expression can be seen as unreasonable or objectionable and outwith direct discrimination protection.

In this case, the tribunal concluded that the claimant’s expression of views stayed the right side of the line, in the context of an employer which was a “think tank” with no social media policy and where vigorous debate was the norm.  The claimant’s tweets included that “trans women are male” and that a “man’s internal feeling that he is a woman … has [no] basis in material reality”.  She had also criticised the inclusion of a gender-fluid individual, whom she described as a “part-time cross-dresser”, in a ‘women in business’ list and had made available materials supporting a campaign against sex self-ID legal reform.  However, she had also made clear that she was happy to agree to disagree with others, that she would use preferred pronouns so as not to hurt anyone’s feelings, and she was willing to include a disclaimer on her twitter handle to clarify that the views were her own.  The tribunal considered that most of the claimant’s tweets were simply statements of her belief and that the tweets mocking views opposing her own were sufficiently mild not to be objectively unreasonable, given that mockery or satire is “part of the common currency of debate”.

The Forstater ruling is at first instance only and so not binding. Further case law  will be needed to clarify what factors are relevant when determining if objection could justifiably be taken to an expression of belief.  This is likely to be forthcoming in the not too distant future – Dr Mackereth has indicated that he will appeal, and the EAT is also due to consider similar issues in Higgs.

 

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London