Gender-critical belief is a protected characteristic
Over the years, beliefs relating to ethical veganism, anti-fox hunting, climate and the environment have all received the stamp of approval as being capable of protection under the Equality Act. They fit into the category of religion or belief, which includes “philosophical belief” under the discrimination laws, and are capable of protection in the same way as gender, race, sexual orientation and all other protected characteristics. Following the EAT’s decision in Forstater v CGD Europe, the latest additions to that category are “gender-critical” beliefs, which include the belief that a person’s biological sex cannot be changed, and should not be conflated with gender identity.
Where does that leave transgender employees?
What does that mean for a transgender employee who is mis-gendered by another member of staff who holds gender-critical beliefs? The EAT was extremely keen to ensure that the decision was not misinterpreted as diminishing the rights of, and protections for, transgender employees. It made it clear that those with gender-critical beliefs cannot mis-gender or otherwise discriminate against transgender persons.
Take-away for employers
This is an important case for employers because it highlights the very real possibility that genuinely held beliefs (on Brexit, abortion, and by COVID-19 anti-vaxxers, to name a few) may come into conflict with employees holding opposing views. Employers will generally not wish to take a position on such conflicting views, but may be left dealing with the fallout and any subsequent disputes.
Individuals generally have the right to freedom of expression, even where beliefs are unpalatable to some. According to the EAT judge, protected 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”.
What is clear from the Forstater case is that managing the conflict by not hiring or firing individuals with difficult views is a high-risk approach. Nevertheless, the risks can be reduced by educating the workforce in this space.
While a Dignity at Work policy cannot mandate which beliefs are acceptable, it can set out the ground rules for how views are expressed in the workplace, particularly where they are likely to conflict with other beliefs. Don’t be afraid to acknowledge that this can be sensitive, and will require employees to think ahead about how the manifestation of their beliefs may land with other employees holding different views. Social media policies should also be revisited to review what is said about comments made online, or otherwise outside of the working environment.
Even the best drafted policy will have limited effect if it sits on a shelf on the intranet. It needs to be brought to life with training that embeds the message that there are limits to how beliefs are manifested in the workplace. Dignity at Work training with nuanced examples, which allows participants to debate, challenge and hear alternative views, can be both powerful and effective.
If you are interested in more detail as to how the EAT reached its decision, a case report can be found here.