Belief, disagreement, discrimination and freedom of expression

A number of recent tribunal rulings have considered whether various “gender critical” beliefs are protected under the Equality Act 2010.  Each case turns on its own facts and specific context, with the tribunals emphasising that it is not their role to express views on the merits or correctness of particular beliefs.  Whilst these decisions have mainly arisen in the context of employment relationships, they are of wider interest when considering questions of belief, discrimination, freedom of expression and academic freedom.

The Equality Act 2010

There are nine ‘protected characteristics’ under the Equality Act 2010, including ‘religion or belief’.  The Act applies in a number of situations, including workplaces and education settings – more specifically defined in the Act.   Broadly, the Act prohibits direct and indirect discrimination, harassment and victimisation in connection with the protected characteristics.

A belief is defined in the Act as “any religious or philosophical belief...[and] includes a reference to a lack of [religion or] belief”. For a philosophical belief to be protected, the five conditions known as the ‘Grainger criteria’ must be met, as explained here. 

Further conditions apply for a claim to succeed under the Act.  For example, where indirect discrimination is alleged, the claim may be successfully defended if the potentially discriminatory action can be objectively justified as a ‘proportionate means of achieving a legitimate aim’.

When considering questions of religion or belief, it may also be necessary to consider individuals’ rights to hold, manifest and/or express their beliefs under the Human Rights Act 1998.

Recent decisions

Each case turns on its facts and typically involves the tribunal considering in detail the particular belief of the individual concerned, as well as the specific circumstances, such as how the belief has been manifested or expressed and the particular complaints:

• Forstater v CGD Europe – last year the Employment Appeal Tribunal gave a preliminary ruling that the claimant’s gender critical belief fell within the protection of the Equality Act, whilst noting that her belief might be offensive to some, and might in some circumstances even have the potential to result in the harassment of trans people.  Consistently with earlier rulings, it held that the threshold for the types of belief qualifying for protection should not be set too high (but there can be cases where this threshold is not met - as here).  The Appeal Tribunal also stated its judgment did not mean that those with gender critical beliefs could “misgender” trans people with impunity, given the protections against discrimination and harassment in the Act.  It acknowledged that a belief opposing the gender critical belief would also potentially qualify for protection.  A further Tribunal judgment followed this year; a key finding being that the employers had directly discriminated against the claimant because of her protected beliefs in deciding not to offer her an employment contract and not to renew her visiting fellowship.  Any remedies/damages award will be considered at a further hearing. 

• Bailey v Stonewall and Garden Court Chambers – The claimant holds gender critical views and is a barrister at Garden Court Chambers.  Complaints were made to her Chambers that some of her tweets were transphobic and damaging to her Chambers’ reputation.  The Employment Tribunal has recently held that she was discriminated against by her Chambers (a) when it tweeted responses that it would investigate the complaints under a complaints procedure, and (b) when a subsequent Chambers investigation found two of her tweets “likely” breached the barrister’s core duties, with a request they be taken down.  The Claimant was awarded £22,000 compensation for injury to her feelings.  The Tribunal rejected various other claims, including allegations that the charity Stonewall had instructed or induced such discrimination.

• Mackereth v DWP – the Employment Appeal Tribunal held on the facts that implementing a policy requiring a doctor to address transgender service users using pronouns and titles that aligned with what the policy referred to as the individual’s “presented gender” / “presented sex” was objectively justified.  Applying the policy was therefore not indirectly discriminatory, despite the doctor’s contention that this contradicted his religious beliefs.  The tribunal’s reasons for finding the policy was objectively justified are outlined here.

• Higgs v Farmor’s School – an Employment Tribunal held that a school had not directly discriminated against its former employee when they dismissed her for posting items on Facebook that in the view of the tribunal “might reasonably lead people who read her posts to conclude that she was homophobic and transphobic”.  The claimant is appealing this decision and the Employment Appeal Tribunal has decided that a lay tribunal member who had previously publicly expressed opposing views “on the very issues that are at the heart of the claimant’s case” ought not to be part of the panel hearing the appeal given its finding of a real possibility of “unconscious bias”.

Further decisions and appeals may follow.  These rulings underline the need for an appreciation of the underlying legal frameworks, as well as the actual and potential factual scenarios when preparing and implementing policies, procedures and decisions that potentially engage individuals’ protected characteristics or human rights.

The sector will also be aware of various guidance on freedom of expression, including from the Office for Students, noting also the provisions of the Education (no.2) Act 1986 and the Higher Education and Research Act 2017.  The Higher Education (Freedom of Speech) Bill is also still being considered by Parliament.