June 2022 saw the end of a long-term, controversial discrimination case surrounding the expression of philosophical beliefs.
Below, we’ll give a more detailed explanation of the case itself as an example of workplace discrimination under the Equality Act 2010, as well as a rundown of what we can learn from it regarding philosophical belief and the Equality Act.
The Case Background
In January 2015, the Claimant was engaged by CGD as a Visiting Fellow. At the time, she was a researcher and writer on topics related to public policy, tax, and business, and had an active social media presence. Her consultancy agreement was subject to a number of renewals, and in October 2017, the possibility of hiring her as an employed Research Associate in the London Office was first mooted.
CGD are a not for profit ‘think tank’ working to reduce global poverty and improve lives. They aim to do this through innovative economic research that drives better policy and practice by the world’s top decision makers.
The Claimant held a belief that biological sex is real, important, immutable, and not to be conflated with gender identity. She considered being female an immutable biological fact, not a feeling or an identity.
The Claimant pursued a number of claims, the majority of which revolved around different types of discrimination related to a protected belief under the Equality Act 2010.
In November 2020, the Employment Tribunal determined that the Claimant’s belief did not satisfy the criteria for a ‘protected’ belief within the meaning of the Equality Act 2010. This finding was fundamental to the Claimant’s claims, as the majority of them could only proceed if her belief was ’protected’.
In June 2021, however, the Employment Appeal Tribunal overturned this decision and her claim was remitted back to the Employment Tribunal.
Some of the claims failed, but we have focused on the successful claims for the purposes of this article.
So, What Happened?
In 2017, the Claimant grew concerned about proposed changes to the Gender Recognition Act 2004, which would permit people to self-identify their gender. After a period of private research, she began to voice her concerns publicly on Twitter in August 2018.
Some staff raised concerns with the Respondent(s)), alleging that the Claimant’s tweets were transphobic. The Respondent did not have a Social Media Policy to draw from as a basis for its response to the issue which had arisen, and once the concerns were raised, internal discussions acknowledged that there was a range of practices and views across Fellows. It would therefore be beneficial, they decided, to have a broader discussion of how social media was used by both the Respondent and those associated with the Respondent.
The Claimant was informed of staff concerns and asked to include a disclaimer on her Twitter Profile that all tweets and views were her own, which she duly did. In her response to the Respondent, she stood by her belief, explaining some of the basis for her position.
In September 2018, the Claimant brought a booklet into the office, produced by Fair Play for Women, for anyone interested to read. She had previously posted a copy of the booklet on Twitter. The Claimant also had some discussions with colleagues about a related demonstration she had attended. However, when asked to, the Claimant agreed not to initiate such discussions on her beliefs in the office.
The Employer’s Decision
In October 2018, the Respondents began to raise the issue of whether to renew the Claimant’s contract, flagging the potential for some “backlash” from staff.
As it transpired, the Claimant’s Visiting Fellowship was not renewed. She was not offered an employment contract as a Senior Fellow. The Claimant’s profile was later removed from the Respondent’s website.
The Respondent admitted that the Claimant’s tweets played a role in the decision of whether to renew the Claimant’s Visiting Fellowship. The Tribunal was also satisfied that the Claimant’s tweets also influenced the decision not to offer a Senior Fellowship.
What Did The Tribunal Find?
In March 2022, the Employment Tribunal held that the Claimant had been directly discriminated against. Their reasoning was that both the decisions not to offer the Claimant an employment contract and not to renew her visiting fellowship were, at least in part, because of the Claimant’s beliefs publicly espoused on Twitter. The Employment Tribunal also held that she had been victimised by the removal of her profile from the Respondents website.
Direct discrimination is defined by the Equality Act 2010 as conduct where ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A Treats B less favourably than A treats or would treat others‘ (s13).
Victimisation is defined by the Equality Act 2010 as having occurred, ’..if A subjects B to a detriment because (a) B does a protected act...’.
The Employment Tribunal found that the Claimant had proved, on the balance of probabilities, facts from which they could conclude that an unlawful act of discrimination occurred. It was therefore for the Respondent to prove that the Claimant’s protected characteristic (her belief) played no part in the reasons for the treatment.
Knowing The Line
A central issue in this case was the distinction between holding a protected belief and expressing or manifesting that belief.
It was not necessary in law for the protected belief to be the whole reason or even the principal reason for the treatment. If the manifestation of the belief, and not the belief itself, had a part to play in the reason for the treatment, then the Tribunal had to consider whether the manifestation of the belief was “objectionable”.
In navigating this space, the Tribunal had to also consider Article 9 (Freedom of thought, conscience and religion) and Article 10 (Freedom of Expression) under the European Convention on Human Rights.
On the Respondent’s own evidence, the Claimant’s tweets were a substantial part of the reason the Claimant was not offered employment as a Senior Fellow. The question was, therefore, whether the tweets themselves were a manifestation to which objection could reasonably be taken, or an inappropriate manner of manifesting the belief, bearing in mind that “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” and the mere stating of them would not meet the required standard for reasonable objection to be taken. After consideration of each tweet brought to their attention, the Tribunal were satisfied that the Claimant’s tweets were not objectionable or inappropriate manifestation of the Claimant’s beliefs, given the context of a debate on a matter of public interest.
Is The Tribunal’s Decision Legally Binding?
In short, no. The latest Employment Tribunal decision is not binding on other courts. However, the Employment Appeal Tribunal decision from June 2021 (which found that the Claimant’s belief qualified for legal protection) is binding on Employment Tribunals.
What Can We Learn From It?
There were two particularly challenging issues in this example of workplace discrimination, both of which have provided a sense of direction for employers and employees who find themselves affected by this type of issue.
The Belief Must be Protected in Order for There to be a Credible Claim.
There are five criteria applied to determine this issue. The Employment Appeal Tribunal decision prior to the latest Employment Tribunal decision clarified that when it comes to philosophical beliefs, only the most extreme beliefs, akin to Nazism or totalitarianism or which incite hatred or violence, would be excluded from the definition of ‘protected belief’, on the fifth ground that the belief is “not worthy of respect in a democratic society”.
The EAT also commented that this should not be a particularly time consuming preliminary issue to resolve in tribunal proceedings, stressing the importance of precision as to the belief itself, which would be a task falling to the Claimant when pleading their case.
The Cause of the Alleged Mistreatment Must be Considered on its Own Facts.
If detrimental treatment was not brought about by the fact of the belief itself, but instead the way it was manifested, that manifestation must be objectionable in order for detrimental treatment to be lawful. There may be cases where it’s difficult to distinguish between the simple act of manifesting an objectionable (but protected) belief – which would be unlawful – from the objectionable manifestation itself, as was the case in Forstater v CGD.
Well-drafted, up to date policies that set out neutral, objective standards of conduct at work would be a helpful starting point, as well as outlining precautions around the use of social media so that employees are aware of what they can or cannot do under the terms of their employment. Employers should also provide effective training on the content and implications of such policies.
Howells Can Help
At Howells Solicitors, we provide expert services on employee law and employment law, so we can help you understand your rights if you believe you’ve been discriminated against at work, whether due to your beliefs or any other reasons.
Get in touch with our experienced solicitors today to see how we can help you.
