Following the success of an appeal to the Employment Appeal Tribunal, which held that "gender critical’ beliefs were a protected philosophical belief under the Equality Act 2010 in a claim against the Centre for Global Development Europe, Centre for Global Development and Masoos Ahmed, the Employment Tribunal has held that the employer's decision not to offer Maya Forstater an employment contract or to renew her unpaid visiting fellowship was direct discrimination related to her gender-critical beliefs. She had also been victimised.

Here, we consider some key points for employers to keep in mind in relation to the Equality Act 2010.

This case, which was highly publicised, concerned Maya Forstater, a researcher and writer who was active on social media, particularly on Twitter, where she expressed her gender critical beliefs. Her employers argued that the way in which she had expressed her beliefs over social media had been unacceptable. The Tribunal also found she had been victimised when her employers removed her profile from their website.

The Employment Appeals Tribunal (EAT) found that Forstater’s gender critical beliefs met the requirements set out in Grainger plc v Nicholson [2010] ICR 360 to qualify as a protected belief under the EqA. The requirements of this test are that the belief in question must:

  1. Be reasonably held.
  2. Be a belief as opposed to an opinion.
  3. Relate to a weighty and substantial aspect of human life/behaviour.
  4. Have a level of cogency, seriousness, cohesion, and importance.
  5. Be worthy of respect in a democratic society. It cannot be incompatible with human dignity and in conflict with the fundamental rights of others.

The EAT highlighted that those beliefs “may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society”. This is something employers should be mindful of when considering how they respond to employees’ actions related to any strong beliefs they express.

On the basis that Forstater’s beliefs were protected by the 2010 Act, the Tribunal found that her expression of her beliefs over Twitter and engagement in debate on the matter had not been inherently unreasonable or inappropriate though it did acknowledge that some people could be offended.

In contrast, in another case, the EAT recently held in Mackereth v DWP [2022] EAT 99 that a Christian Doctor’s beliefs did not satisfy the Grainger test set out above. The Doctor, who was employed by the Department for Work and Pensions, had refused to use transgender patients’ chosen pronouns when treating them. This was contrary to the employer’s policies. His beliefs (in fact, lack of belief) in “Transgenderism” and “gender fluidity”, such that he did not believe (i) a person can change sex/gender, (ii) that “impersonating” the opposite sex may be beneficial for a person’s welfare, or (iii) that society should accommodate/encourage such “impersonation”; and a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex were found not satisfy the criterion of the Grainger test that the belief in question must be worthy of respect in a democratic society and not incompatible with the fundamental rights of others.

This shows the extent to which each case on belief (or lack thereof) will depend on the particular circumstances.

It is also worth remembering that the unwanted conduct which has the purpose or effect of violating another person’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for them is harassment under EqA if it is related to a protected characteristic. It is important to remember also that the person subjected to this behaviour need not have the relevant protected characteristic for this to amount to harassment.

Employers are liable for the acts of their employees in employment so they should be conscious of employees expressing their strongly held beliefs whilst also taking reasonable steps to prevent harassment and fostering a work environment that is not hostile. Having well thought-out policies on equal opportunities and regularly training employees so they are aware of the employer’s approach are essential to try to foster a constructive working environment and avoid Tribunal claims.

This article was co-written by Georgie Naysmith, Trainee Solicitor.