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What’s new for the protection of “gender critical” beliefs?

Following last year’s EAT decision in  Forstater v CGD Europe and others  where it was held that “gender critical” beliefs  did amount to a philosophical belief capable of protection under the protected characteristic of “Religion or Belief” under the Equality Act, the case was remitted to the Employment Tribunal who published their decision this summer.

Just to recap the facts, Maya Forstater had been a consultant for CGD Europe and her contract was not renewed in 2018 because some of her colleagues had complained that certain of her tweets about gender and sex were transphobic or otherwise offensive. Ms. Forstater brought a claim in the Employment Tribunal alleging direct discrimination and harassment because of her “gender critical” beliefs. A previous Employment Tribunal had found that her beliefs were not capable of protection  and so the matter had been appealed on that point to the EAT. Once the EAT had decided Ms. Forstaters beliefs were capable of protection, the case went back to the Employment Tribunal to decide.

The Employment Tribunal at London Central found in Ms. Forstater’s favour- they found that she had been directly discriminated against because of her protected beliefs. This is legally interesting because the Tribunal was called on to decide whether CGD Europe had treated Ms . Forstater in this way because of her beliefs or because of the way she manifested those beliefs. The former would amount to direct discrimination, the latter, indirect discrimination which can be justifiable as a proportionate means of achieving a legitimate aim. 

In previous decisions, Tribunals have tended to find that employers have behaved as they have due to the way employees have manifested their beliefs and not because of the actual beliefs. This decision bucks that trend somewhat and finds that in this particular case, CGD Europe were reacting to Ms. Forstater’s views themselves and not the way she manifested those beliefs. They decided that Ms. Forstater had not manifested her gender critical beliefs inappropriately.

In light of this, employers will be keen to know what this means in practice and how this affects the always tricky balancing act of competing protected beliefs. This case doesn’t mean that employers can’t take action over bullying or harassment of other employees or where employees airing their views at work are offending their colleagues or worse. The lines are less clear about employees airing protected beliefs outside of work but employers may still be able to take action if the employee does so in an offensive or inappropriate manner.

As ever, employers do still need to be careful about how they treat employees who they deem to hold offensive views as this could amount to direct discrimination, which, unlike indirect discrimination, is not capable of being justified.

It’s also important to note that this is only a first instance Employment Tribunal decision which isn’t binding on other tribunals. Neither is it the only important case in this developing area (although possibly the best known due to its media coverage). Earlier in the summer, the EAT published its decision in the case of Mackereth v The Department of Work and Pensions and others which confirmed the  EAT decision in Forstater. However, Dr Mackereth has indicated that he will be appealing this judgement. Together with another case (Higgs v Farmor’s School currently under appeal and subject to its own interesting issues due to the recusal of a lay member from the EAT hearing it), this means that it certainly won’t be the last we hear of this. Watch this space.

Posted on 8 September, 2022 by Ortolan

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