There has been a significant shift in individual and societal openness around sex and gender identity in recent years. The debate is complex and inevitably there are a range of views and opinions on the issues.
Several recent employment tribunal cases have been brought by claimants who believe that a person cannot change their sex. This belief is generally referred to as “gender critical”. Employment Appeal Tribunal (EAT) decisions have concluded that this belief is capable of protection under the Equality Act 2010 (EqA) as a “philosophical belief“.
Gender critical beliefs provide scope for conflict and disagreement in the workplace, as well as complications arising from conflict with other protected characteristics under the EqA, particularly gender reassignment, sex, sexual orientation, disability and religion.
This poses a challenge for employers, who are responsible for preventing discrimination and harassment in the workplace and promoting diversity, equality and inclusion. Even the most well-intentioned employers can be subject to litigation if they fail to adequately balance the competing issues. Employers should consider the following points to navigate the challenges effectively.
One protected characteristic cannot trump another
There is no hierarchy of protected characteristics in the EqA. An employer should remember to revert to legal principles around discrimination and consider any specific guidance in place. It must not be swayed by its own subjective beliefs.
Distinguish between conduct and beliefs
Whether action taken was because of the claimant’s protected belief or the way in which that belief was manifested can be crucial to whether discrimination has or has not taken place. An employer is in a stronger position where it acts in response to a worker’s conduct in manifesting their views, but it is not always straightforward (or possible) to adequately separate that conduct from the beliefs themselves.
In Forstater v CGD Europe and others ET/22200909/2019, the ET concluded that disassociation was only possible where the manifestation of a belief is inappropriate or where objection could reasonably be taken. As the claimant’s comments, while controversial and provocative, were not (on the whole) objectively offensive or unreasonable, but rather an expression of her views as part of a wider debate on the issues, her conduct and beliefs were intrinsically linked.
In contrast, in Higgs v Farmor’s School ET/1401264/19, the ET found Ms Higgs’ Facebook posts were objectively homophobic and transphobic, resulting in a finding in her employer’s favour.
Instil a culture of dignity and respect
While healthy and respectful debate is a normal part of life, this does not give individuals carte blanche to say whatever they like. All workers should be treated with dignity and respect, and discriminatory behaviour should not be tolerated. However, sometimes employers and staff have to tolerate views that they do not agree with.
It was relevant in Mackereth v DWP [2022] EAT 99 that the claimant was not put under any pressure to change his beliefs, nor was he interrogated about them, and his employer had actively tried to find a way to accommodate his beliefs.
Use language carefully
An employer should consider using gender-neutral drafting in workplace policies, procedures and other documents. Where reference to men or women is required, it should also consider updating definitions of those terms to include those who identify as such or are non-binary.
An employer should not necessarily insist that staff declare their pronouns, instead leaving this to individual choice.
Revisit social media policies
An employer may benefit from revisiting its social media policies to ensure they provide guidance and sufficient coverage for workers sharing their views on social media, particularly on topics that could be controversial, discriminatory or in conflict with others’ rights.
Social media is a common way for views to be manifested: Forstater, Bailey v Stonewall and others ET/2202172/2020 and Higgs all involved posts and debates on popular social media platforms. However, an outright ban on social media use is perhaps unfeasible.
Understand and justify rationale
Where risks of discrimination and conflict are high, an employer should think carefully when making policy or other decisions in the workplace. Even where policies apply to everyone, they may disadvantage people with one or more protected characteristics.
This is not necessarily discriminatory unless the policy cannot be objectively justified as a proportionate means of achieving a legitimate aim. An employer who can clearly articulate its legitimate aims and demonstrate that its approach is proportionate with reference to alternatives is in a stronger position.
This is demonstrated in Mackereth, where the EAT was satisfied that the employer’s pronoun policy:
- Had legitimate aims of ensuring transgender service users were treated with respect and in accordance with their identities, and of promoting equal opportunities.
- Was a proportionate means of achieving those legitimate aims.
Implement regular training
The mere existence of anti-discrimination policies is not sufficient for an employer to demonstrate that it is taking steps to avoid discrimination. An employer should actively bring policies to workers’ attention and regularly repeat equality, anti-harassment and unconscious bias training.
Consider communal spaces, facilities and services
An employer should ensure that all workers, visitors, clients or service users have access to facilities and services where they are comfortable, can feel respected and safe, and can be free from hostility. This may require employers to revisit their bathroom, shower and changing room accommodation, and their identification and security measures.
Similarly, employers who employ or provide services to vulnerable people may need to think carefully about how to balance the needs of those service users with the rights of staff. In Mackereth, the vulnerability of transgender service users was relevant to the outcome of the claim.
Similarly, where organisations provide services to other vulnerable groups (for example, victims of sexual abuse), the welfare of those service users may result in having to exclude employees of a particular sex or gender identity from working with them.