Team Gender Critical or Team Stonewall? That's not really the point
Posted on 11th January 2024 at 16:00
If you’ve read the news or been on Twitter lately, there’s no missing the dispute between ‘gender-critical’ feminists and trans rights campaigners. It seems that everybody has an opinion, be it banks, sportspeople, authors and charities.
The dispute has now made it to the Employment Tribunal, with several claims from gender-critical people who feel they have been harassed or dismissed because of their views.
Maya Forstater was awarded more than £100,000 in her claim against the Center for Global Development, which discontinued her contract after she tweeted about her views. Allison Bailey won parts of her claim against Garden Court Barristers for their handling of unofficial complaints about her, and Denise Fahmy won her harassment claim against the Arts Council after colleagues created a petition condemning her views. At the start of 2024, Rachel Meade was successful in her discrimination claim against both her employer and her regulatory body, Social Work England.
However, Dr David Mackereth lost his claim against DWP after he was dismissed for refusing to address clients by their chosen pronouns.
The potential clash between trans rights and women’s rights is becoming more of an issue for employers. However, employers can learn a lot from these cases about how to manage contentious beliefs.
Don’t let your own views sway the decision
These cases show the difficulty in responding to ‘offensive’ statements, given that you can’t discriminate against an employee because of their religion or philosophical belief. Too many employers have been influenced by their own views on the debate and opposition online. This misses the point. As an employer, it doesn’t matter how you feel about certain beliefs; It matters what the law says.
The tribunal is not concerned with the scientific or logical basis of the belief, or whether the belief is correct. For a belief to be protected, it must:
be genuinely held.
be more than just an opinion or viewpoint.
affect how the individual lives their life.
concern a substantial aspect of human life and behaviour.
be worthy of respect. A belief that is incompatible with the fundamental rights of others will not be protected.
By their very nature, philosophical beliefs are extremely important to the individuals that hold them. Equally, opposing beliefs are likely to be strongly held. This means there is potential for strong disagreements or offence. However, as clarified in Meade's case, "the fact that offence is taken, is not the same as a remark being objectively considered to be offensive."
We have looked before at the risk of ‘clear-cut’ cases, where employers are so convinced they are right that they overlook the law. Disputes between gender-critical beliefs and trans rights have the potential for the same mistakes. Those who disagree find the belief so offensive that they think it can’t possibly be legally protected or, like Ms Bailey’s colleague, assume “there must be something in our constitution or diversity policy which precludes this.”
In Bailey v Garden Court Chambers, when the Chambers received complaints about Ms Bailey’s tweets, “the Heads of Chambers were unsympathetic, whether with her opinion or her way of expressing it.” They did not follow their own complaints procedure, instead appointing an investigator and tweeting that they were investigating. This “suggested she had done something which at the least required investigation, and so might lead to action, which could suggest some punishment.”
The people involved in the decision had made their own opinions about Bailey’s tweets clear before the investigation. Leslie Thomas stated “Allison’s views are not shared by the Heads or the vast majority of chambers,” and Judy Khan confirmed “As far as I’m concerned, our collaboration with Stonewall will continue and is welcome.”
In particular, the tribunal felt that “the intervention of someone who held views opposed to those of the claimant suggests that it was her views that influenced this decision.” This colleague had declined to investigate due to her legal and campaigning work on trans rights but was involved in deciding which tweets to investigate, selecting materials to send to the committee, approaching the Bar Council Ethics Committee for advice and contesting the initial decision, successfully pushing for stronger wording.
In comparison, the tribunal looked at the different handling of complaints about another barrister’s tweets, which were interpreted as antisemitic. The new heads of Chambers (who were both involved in handling complaints about Allison Bailey) rejected the complaint as the tweet was “a personal opinion for which X could identify an objective basis and justification,” and as his views were not those of Garden Court.
Even more explicitly, in Meade v Westminster City Council and Social Work England, the tribunal highlighted "an apparent willingness to accept a complaint from one side of the gender self-identification/gender critical debate without appropriate objective balance." In particular, the person leading the investigation expressed her own opinion when describing Meade's beliefs as "discriminatory," suggesting she was not objective and had already decided Meade was guilty of gross misconduct.
Employers must apply policies consistently, using the same process for all investigations – however they feel about the views in question.
Be careful not to double down in defence
Sometimes, employers are so certain in their case that they neglect fair process. Not only can this cost you your claim, but you may be further penalised with uplifts or, in rare cases, cost orders. Denise Fahmy’s compensation will include an uplift of around 10%, as the Arts Council refused her the right to appeal their findings, and Garden Court Chambers were ordered to pay £20,000 of Allison Bailey's costs because of their 'unreasonable behaviour', including failure to provide an organised bundle.
Maya Forstater’s compensation included £27,000 aggravated damages for injury to feelings, reflecting “oppressive and high-handed conduct” in public statements made by the President and Vice President of the Center for Global Development. After the first hearing found in the employer’s favour, some of their statements “overstated judicial statements” and suggested Forstater’s belief could be compared to bigotry. It is understandable that an employer, feeling vindicated, would want to restore their reputation by sharing the outcome. It might be sensible to get a legal overview of any public statements to ensure you have fully understood the legal technicalities and aren’t saying anything that puts you at risk.
It is understandable that businesses want to protect their reputation, but the risk of being unpopular does not overrule employees’ rights.
In the Bailey case, Garden Court Chambers responded “in haste” by announcing an official investigation. It hoped “to damp down the Twitter storm so as to limit the damage to Chambers' reputation.” The chambers allowed their decision to be influenced by the fact that “she had expressed unpopular views” which they didn’t want to be associated with: “Faced with a Twitter storm on gender self-identity, they picked sides. The Heads chose to prefer the view that the claimant was in the wrong… because there was a lot of opposition to the views expressed.”
One Head of Chambers understood that “the suggestion that she may have breached the Equalities Act is very serious, media PR fallout from this for our Chambers I don’t even want to think about.” However, the chambers seemed to have only considered the damage from Bailey’s unpopular tweets, and not considered whether their own stance could cause similar damage.
This appears to have also been an issue in Meade’s case, where the tribunal stated “merely accepting at face value a complainant’s subjective perception of offence is not the appropriate test, but rather that an objective evaluation should be undertaken… the Second Respondent's failure to check if [the] complaint could be malicious, and not checking his previous social media history, is indicative of a lack of rigour in the investigation.”
Businesses should take steps to prevent reputational damage before it happens, rather than wait for damage and take a high-handed approach. Garden Court Chamber had no social media policy at the time – had they implemented one, it may have gone some way to reducing the damage. It would at least have given them a starting point as to whether Ms Bailey’s tweets breached their policy.
As an employer, you may be tempted to ban all employees from Twitter – that approach would certainly have avoided a lot of these disputes. However, policies that unduly prevent free speech could still cause problems. Instead consider measures to reduce the risk, such as asking employees not to list their workplace on non-work profiles, or not to use social media during work time or on work equipment. You might need to give extra thought to LinkedIn, which is specifically work focused.
Policies must apply equally to all employees, beliefs and religions. Preventing employees from speaking only on certain issues, or from supporting one side of a debate, could be discriminatory against individuals who hold those beliefs. Policies should be clear that employees are entitled to their views but are encouraged to voice them respectfully and create a tolerant workplace. Lead by example in the way you communicate with your team.
Take a balanced approach
The tribunal in Meade’s case was clear that “we do not consider that the Respondents struck a fair balance between the Claimant’s right to freedom of expression and the interests of those who they perceived may be offended by her Facebook posts”.
In Bailey's case, Garden Court Chambers were particularly influenced by their ongoing relationship with Stonewall and their reputation within LGBTQ communities. The employee who went on to lead the investigation felt that “given that we are Stonewall Diversity Champion, I do not think she should be maligning them.” Another person involved in the decision expressed concern that “Our reputation has taken a hammering from this community on Twitter … We are signed up Stonewall Diversity Champions with their logo on our website, and accreditation we signed up to as a Chambers.”
This isn’t to say that your businesses shouldn’t focus on key issues that matter to you or your team. But you should remember that special-interest groups promote the interests of one group and cannot be expected to fully reflect all groups. It is your responsibility as an employer to balance all relevant interests and treat everybody fairly.
It is important to understand when to support special causes and when to remain neutral. For example, you may choose to fundraise and volunteer for a specific interest group, but consider allowing those who disagree on religious or philosophical grounds to opt out without consequences. Rather than asking one lobby group to overview your policies for how they relate to one community, consider inviting all your staff (whatever their beliefs) for their input.
As well as avoiding legal claims, this can improve the workings of your business. For example, the recent Census recorded significant anomalies when asking about gender identities. The Spectator suggests this is because the Office for National Statistics (ONS) tested the question at LGBT events but didn’t ask any other groups for input. Had it also asked groups supporting those with English as a second language, or charities supporting refugees (some of whom weren’t registered at birth and so have no sex registered at birth) the question might have been asked differently and returned more credible results.
Considering all groups early on can also prevent PR troubles later on. Google has faced criticism after withdrawing sponsorship from a Pride event because religious staff were offended by the name of a performer, Peaches Christ. The public backlash could have been avoided by including a diverse range of opinions in the initial decision.
Again, it doesn’t matter if the employer agrees with the views or not. What matters is whether their belief or view is protected.
But surely some beliefs go too far?
Views that are incompatible with the fundamental rights of others are considered ‘not worthy of respect in a democratic society,’ and are not protected under the Equality Act. Past examples include holocaust denial and a belief that one race is superior to others. However, the Tribunal has made it clear that this is a high threshold to meet, and only the most extreme and grave views are not worthy of respect.
Sometimes, even different courts disagree. The court initially ruled that Maya Forstater’s ‘gender critical’ views were not worthy of respect, but a later appeal found that her views were protected. In Lee V Ashers Baking Company, the Supreme Court overruled the finding of the earlier courts, supporting a bakery that refused to make a cake with a slogan supporting same-sex marriage.
Just because you find an opinion offensive, that does not mean it meets the high threshold of being unworthy of respect. Unless the belief has already been tested in a tribunal case, it is incredibly risky to assume it is too offensive to be protected, and you could leave yourself open to legal claims.
So what can I do if an employee’s opinions impact my business?
Ideally, employers should take steps to prevent the problem ahead of time. Consider how your policies balance the right to hold beliefs with the need to protect your business. Your policies on social media, grievances, equal opportunities and harassment and bullying will be particularly relevant.
Rather than focus on whether a belief is protected or not, it can be slightly safer to look at how the employee manifested their beliefs. Even if a belief is protected, employees are not entitled to harass those who disagree. The judge in Maya Forstater’s case was clear that "this judgment does not mean that those with gender-critical beliefs can 'mis-gender' trans persons with impunity.”
You may also consider whether the situation justifies restricting somebody’s beliefs. Dr David Mackereth lost his case because, although his beliefs were protected, the tribunal found that the restriction of his expression was necessary and proportionate to meet the needs of potentially vulnerable service users.
If you think you might have legal grounds to restrict an employee from manifesting their belief, you should take legal advice before acting. Simply seeking a second opinion may not help if the person asked also has views on the issue. What matters is the law and how it applies, so the best person to seek advice from is a qualified legal advisor.
In some cases, you may simply have to accept that your employee is entitled to hold beliefs you disagree with.
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