Dismissing employees for ‘offensive’ beliefs | What can we learn from the Forstater decision?
The controversial Forstater case came to a climax this month (subject to a hearing to decide what damages should be awarded and any appeal that may be forthcoming), and for employers, it offers some clarity as to how Tribunals might deal with matters involving employees with ‘gender-critical’ beliefs.
For those not familiar with the case, it involved writer and researcher Maya Forstater, whose employer chose not to renew her fellowship contract, or offer her employment as a senior fellow, over of series of tweets in which she expressed her belief that people cannot change their biological sex.
The tweets included comments along the lines of “trans women are male”, which some, including her employer, the Centre for Global Development (CGD), considered to be offensive. Some of Ms Forstater’s colleagues also raised concerns about her social media activity.
The company’s CEO, Amanda Glassman, said its “primary aim” is to create a work environment that is “welcoming, safe, and inclusive to all, including trans people”.
After being let go, Ms Forstater took CGD to an Employment Tribunal (ET) in 2019, arguing that her views amounted to a “philosophical belief”, one of nine protected characteristics under the Equality Act 2010.
The Tribunal initially dismissed her claim on the basis that her belief was not protected. It found that her “absolutist” views of sex and gender did not qualify as a protected belief as they were “not worthy of respect in a democratic society”, one of the five tests when establishing whether a philosophical belief is protected.
However, the Employment Appeal Tribunal (EAT) disagreed. It concluded that her belief that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a transgender woman is not in reality a woman, was in fact protected.
The case then went back to the ET to decide whether the non-renewal of her contract – amongst other alleged detriments – was discriminatory. Here, the ET held that CGD’s decision not to renew Ms Forstater’s fellowship role or offer her a senior fellowship was in fact direct discrimination related to her gender-critical beliefs.
Two aspects of Ms Forstater’s direct discrimination claim were successful – namely not renewing or offering her the fellowship / senior fellowship contracts because of her beliefs – along with a claim for victimisation for having her details removed from the CGD’s website, which was found to have been done because she had cooperated with the Sunday Times on an article about her case.
Not what you say but how you say it?
A central aspect of this case was the potential distinction between an employee holding a protected belief and the way in which they manifest that belief.
For example, it may be acceptable for a person to have certain beliefs about transgenderism, but the way they express those beliefs, whether through their words or actions, may be unacceptable.
CGD argued that the reason they had chosen to cut ties with Ms Forstater was that she had expressed her belief in what they considered to be an unacceptable way.
In assessing her discrimination claim, the ET asked itself whether Ms Forstater’s tweets were:
- A manifestation of her belief to which objection could reasonably be taken; or
- An inappropriate manner of manifesting the belief.
The EAT examined the tweets that were the strongest candidates for such a finding and concluded that they were neither.
It held that Ms Forstater simply stating her beliefs was not in itself “inherently unreasonable and inappropriate”.
The tweets, it said, were straightforward statements of her protected gender-critical belief. While one of the tweets was considered to be provocative, read as a whole, Ms Forstater’s manifestations were not objectionable or inappropriate.
In addition to the tweets, Ms Forstater had left a booklet at work from an organisation called “Fair Play to Women” (which she said she would not do again), posted a video from them on this subject, and had discussed self-ID on CGD’s instant messaging system, none of which were said to overstep the mark.
The EAT also pointed out that “beliefs may be profoundly offensive and even distressing to many others” but they “must be tolerated in a pluralist society”.
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The majority of the EAT agreed that Ms Forstater had never crossed the line into an objectively unreasonable expression of her belief, and even those who believed she had crossed this threshold on a single occasion agreed this was not sufficient to justify detrimental action by her employer.
In other words, it was unanimous in finding that it was not proportionate for CGD to allow Ms Forstater’s tweets to influence its decision about whether to renew or offer her a new contract.
What’s more, even if Ms Forstater’s comments had been found to be objectively offensive or unreasonable, the EAT maintained that CGD could have taken less-extreme measures to deal with any issues that her views may have posed.
Indeed, it heard that Ms Forstater had taken steps that “substantially mitigated the risk of future concerns of a similar nature”, including adding a disclaimer to her Twitter profile stating that her views were her own, as well as agreeing to tweet less, agreeing not to misgender, and agreeing not to discuss her beliefs in the workplace. All of this made CGD’s response even less proportionate.
Ultimately, the EAT found that the non-renewal of her fellowship amounted to direct discrimination, with CGD’s decision to remove her profile from their website amounting to victimisation. In a statement, Ms Forstater said her case matters for “everyone who believes in the importance of truth and free speech”.
Lessons for employers
For employers, the case is an important reminder of the distinction between treatment of an employee due to their belief versus an offensive or unreasonable manifestation of that belief. It also highlights how difficult it is in practice to distinguish between two.
How an employer deals with such issues will, unfortunately, depend on the circumstances. In this case, the ET found that the expression of belief went no further than that. It is interesting to note, however, that the ET accepted that this could be done in a mocking and satirising manner and still not be considered to be inappropriate. It’s likely that there are limits to this, too. Disclaimers on social media profiles and reassurances that preferred pronouns will be used in the workplace may also be relevant when considering this, although again, each situation will be different.
This case is in contrast with another recent decision regarding gender-critical beliefs, Mackereth v DWP, where the EAT found that a doctor refusing to use preferred pronouns of transgender service users, in breach of the employer’s own policies, entitled them to dismiss him. His dismissal was not because of his beliefs, but his failure to follow their own processes in respect of vulnerable service users.
From an employer’s perspective, this is a tricky situation. On the one hand, you will want to ensure that the workplace is inclusive and safe, but on the other, you may be fearful of taking action against someone who may have caused upset with such views in case an ET takes the view that the line has not been crossed. One of the main issues for employers with regards to this is the apparent conflict between two protected characteristics, namely philosophical belief and gender reassignment.
The case also reinforces the difficulties employers will face in successfully defending a victimisation claim where they can’t provide an explanation as to why they acted in a certain way. The ET stated that it was this which allowed a finding of victimisation to properly be made.
Crucially, the fact that Ms Forstater’s profile was removed just days after launching her crowd funder and taking part in a Sunday Times article, coupled with the employer’s incorrect explanation of what had occurred, led the Tribunal to infer that the incorrect account had been given in an attempt to avoid admitting that the profile was removed due to the protected act. While CGD said this was “neither a pure coincidence nor a cover up”, it was unable to offer an alternative explanation and therefore failed to discharge the burden of proving that victimisation had not occurred.
Ultimately, the lesson here is this: when you are making decisions that could be detrimental to an employee, it will be necessary, in defence to a claim of discrimination, to have a legitimate, non-discriminatory reason for doing it and to document that reason.
More generally, we’ve seen a number of cases now about a wide range of philosophical beliefs being protected. While this decision is only from the ET, and therefore not binding, it’s useful to see how issues regarding the expression of beliefs that have the capacity to upset some might be dealt with.
The right for an employee to simply express their beliefs is protected (although this case raises the question of whether that expression is within or outside the workplace, which, again, is likely to depend on the circumstances). However, this doesn’t provide protection against that person harassing or discriminating against others, or breaching the employer’s own policies.
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