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Comments against gender-critical beliefs were unlawful harassment

An employment tribunal has unanimously upheld a harassment claim related to an employee's gender-critical belief. It was not disputed that her belief was protected under Section 10 of the Equality Act 2010.

Facts

The claimant was employed by the Arts Council England ('ACE'). The Deputy Chief Executive of ACE hosted a virtual drop-in session for all staff during which the claimant, Ms Fahmy, asked how gender-critical views were protected at ACE. After the meeting, a petition by three employees referred to gender-critical beliefs as 'anti-trans', 'bigotry', 'cancer' and 'transphobic'. The petition was removed after around 26 hours.

Decision

An employment tribunal upheld harassment claims about the petition's comments. It found that there had been unwanted conduct that had the purpose and effect of violating the claimant's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.

Reasonable steps defence

ACE argued that it was not liable for the actions of its staff because it had taken all reasonable steps to prevent the harassment. Specifically, it had immediately suspended the author of the petition, had taken disciplinary action against two other employees who had posted comments, and had a Dignity at Work Policy.

The tribunal concluded that this wasn't enough to make out the defence because:

  • The policy was not up to date.

  • It referred to gender, which isn't a protected belief and omitted sex and belief discrimination, which are.

  • It knew that it needed to update its training to include belief discrimination but had not found a suitable trainer to facilitate this.

What can we learn?

The number of conflict of rights cases is increasing. It is now well established that people who believe that sex is immutable and cannot be changed are protected under the Equality Act 2010.

People losing their jobs for expressing gender-critical beliefs are increasingly using crowdfunding platforms to fund their legal costs. These cases generate huge amounts of media interest, speculation, commentary and debate - all of which can damage an employer's reputation.

Recognise that staff members have the right to hold opinions that others may vehemently disagree with and/or that do not align with your company's values.

Your people are entitled to express those beliefs, although you. as an employer, should set the standards of behaviour that you expect them to follow. Ensure that any disagreements are expressed in moderate tones and that they do not label people as transphobic or bigoted, or describe their views as hateful.

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