Discrimination found in gender critical belief case
27 July 2022
Last year we reported on the case of Maya Forstater. She had brought a claim against CGD Europe, the Center for Global Development, and its President, Masood Ahmed (the Respondents) for discrimination because of her philosophical beliefs about sex and gender, after they did not offer her full employment or renew her Visiting Fellowship. She felt that this was because there had been complaints about comments made by her, particularly on Twitter, in which she expressed her beliefs. As a preliminary matter, the Employment Appeal Tribunal had found that Ms Forstater’s belief, which was described in shorthand terms as a “gender critical belief”, is protected as a philosophical belief under the Equality Act 2010.
The case was sent back to the Employment Tribunal for it to determine whether or not Ms Forstater had been discriminated against and victimised based on her belief. The 81 page judgment of the Employment Tribunal was released on 6 July 2022 and the Tribunal found in Ms Forstater’s favour in relation to some of her claims. Employers will be interested to understand the reasoning behind the Tribunal’s decision, and we have broken this down for you.
What was the gender critical belief held?
A good example of Ms Forstater’s beliefs arose from a tweet she sent in response to someone who had asserted that anyone who identifies as a woman should be counted as one. Ms Forstater replied:
“Yes, people should of course be able to define their identity anyway they like but other people are not compelled to accept it as relating to any material reality. It is not possible to identify into the sex: woman but you can identity [sic] your gender as woman (or whatever) …”
What was the Respondents’ case?
They said that the way in which Ms Forstater had presented her views on Twitter was unacceptable. They referred to her using exclusionary and inflammatory language. This was the reason for them deciding not to offer her employment or renew her Visiting Fellowship as opposed to it being because of the views themselves.
Which claims succeeded?
The Employment Tribunal decided that the following of Ms Forstater’s complaints were well-founded:
- Direct discrimination because of belief by a decision not to offer her a contract of employment.
- Direct discrimination because of belief by a decision not to renew her Visiting Fellowship.
- Victimisation by the removal of her profile from the first Respondent’s website.
Why did those claims succeed?
The Tribunal found that the views expressed by Ms Forstater were not fundamentally unreasonable even if some people were offended by them. It also found that the mocking of an opposing view is part of the common currency of debate and that while mockery might reach the level of being objectively unreasonable, this had not been the case here. Ms Forstater had acted within the boundaries of what was considered acceptable when engaging in public debate on issues of sex and gender and therefore, the way she had presented her views could not be separated from her beliefs. The decisions not to offer her a contract of employment and not to renew her Visiting Fellowship were acts of direct discrimination as they were taken because of the beliefs that she held.
On the victimisation claim, the Tribunal found that the first two Respondents had failed to provide an adequate explanation for the removal of Ms Forstater’s profile as a former Visiting Fellow from their website, which occurred after she had submitted her discrimination claim to the Employment Tribunal and an article had been published about her situation in the Sunday Times.
Ms Forstater’s employment status
The Tribunal’s decision involved a finding that Ms Forstater was at the relevant time ‘employed’ within the scope recognised under the Equality Act 2010. Her position was similar to being a ‘worker’ under other legislation and this case acts as a reminder that employees, employee shareholders and workers are all protected by the Act.
Remedies are to be determined at a future hearing.
What can employers learn from this?
It should be remembered that this is an Employment Tribunal decision, so is not binding on other Tribunals, and that Ms Forstater’s case succeeded based on the facts. However, the earlier decision of the Employment Appeal Tribunal that gender critical beliefs can amount to a philosophical belief is significant. A key lesson from this case is that employers must consider whether an employee’s views are within the remit of what would be considered to be worthy of respect in a democratic society, even if they might be offensive to some. If an employer wishes to take action against an employee for expressing these types of views then they need to be able to justify their reasons for doing so and separate them from the beliefs themselves, which for example, could be because the way in which they have expressed them goes beyond what is objectively reasonable. These sorts of issues can be very difficult for employers to deal with and we would recommend taking legal advice to help you make sound decisions.
If you are an employer facing a discrimination claim, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].