Gender-critical beliefs in the workplace: what employers need to know

Three recent cases have brought to the fore the issues that arise in the workplace when workers express provoking and controversial beliefs. The law protects certain beliefs and makes it unlawful to subject employees to unfavourable treatment because of those beliefs. However, just because a belief is protected, this does not mean that every expression of that belief is also protected. The legal position is nuanced and complicated, often making it difficult for employers to strike the correct balance between protecting the rights of employees with opposing beliefs, while maintaining a diverse and inclusive culture that is free from discrimination and harassment.

Forstater v CGD Europe and others

A tribunal has decided that Maya Forstater, who worked for the think tank CGD, was discriminated against because of her “gender-critical belief” that “biological sex is real, important, immutable and not to be conflated with gender identity”. The Employment Appeal Tribunal (EAT) had previously confirmed that Ms Forstater’s belief merited protection under the Equality Act 2010 and the tribunal found that her tweets and workplace discussion about the issue had not crossed the line into an objectionable manifestation of her belief, justifying the action taken by the think tank. CGD’s decisions not to give Ms Forstater an employment contract and not to renew her Visiting Fellowship were held to be directly discriminatory.

Mackereth v DWP

David Mackereth is a doctor who believes, amongst other things, that a person cannot change their sex or gender at will.  He also has a lack of belief in “transgenderism” and “gender fluidity”. He was employed as a health and disabilities assessor (HDA) by the Department for Work and Pensions (DWP), which requires HDAs to use the preferred pronouns of transgender service users.  Dr Mackereth refused to do so and ultimately his employment terminated. Although the EAT found that Dr Mackereth’s belief and lack of belief were protected, it did not consider that the DWP had subjected him to unfavourable treatment because of his belief or lack of belief. Dr Mackereth’s claim of indirect discrimination also failed, with the EAT finding that the DWP’s policy was necessary and proportionate to achieve the legitimate aims of treating service users with respect and ensuring equal opportunities in respect of the service provided. 

Bailey v Stonewall and others

A tribunal has upheld the claims of Alison Bailey, a barrister, that her chambers directly discriminated against her and victimised her because of her gender-critical beliefs. Ms Bailey expressed beliefs that a woman is defined by her sex, and disagreed with those who say that a woman is defined by her gender (which may differ from her sex) and it is for the individual to identify. The tribunal found that this belief was protected and also Ms Bailey’s belief that “gender theory” is severely detrimental to women (including, for example, that it denies them female-only spaces). The tribunal accepted that, because of her protected beliefs, Ms Bailey was given less work by her chambers, resulting in a fall in income. The tribunal disagreed, however, that her chambers had a policy or practice of treating gender-critical beliefs as bigoted, and her claim of indirect discrimination consequently failed.

General principles

These recent cases, although arising from different facts, establish the following principles to guide employers in managing workplace tension arising from differing beliefs:

• There is a low threshold to meet in order for a belief to be protected under anti-discrimination legislation. Beliefs which are “offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech” may still be protected. The EAT has confirmed that only beliefs “akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms” would fail to meet the test of being worthy of respect in a democratic society.
• Having a lack of belief is also protected: if an individual is treated less favourably by their employer for their failure to profess support for a certain belief, this could amount to unlawful discrimination. In Mackereth, the claimant asserted that his lack of belief in “transgenderism” fell to be protected. 
• It may be possible to draw a distinction between an individual’s belief and the particular way in which they manifest that belief. It may not be unlawful discrimination to penalise an employee for the way in which they manifest their protected belief, if they do so in a way to which objection could be taken.
• It may be difficult to determine when an employee has crossed the line into an inappropriate or objectionable manifestation of their belief, especially when the belief itself is provoking and controversial. When engaging in debate on a matter of public interest, such as sex and gender, the tribunal in Forstater found that mocking or satirising the opposing view on social media was not unreasonably objectionable, commenting that, “such is ‘common currency of debate’ in a democratic society”.
• Even where an employee has expressed their views in an objectionable way, the employer’s response must be proportionate and justified.
• Sometimes, it will not be possible to distinguish the reason for unfavourable treatment from the protected belief where the reason is not the belief per se but a proxy for it. For example:
  • only letting double-bedded rooms to married couples but not to civil partners was found to be directly discriminatory because, at the time, gay marriage was not legal and, therefore, marriage was indissociable from heterosexual orientation,
  • when an employer takes action in response to a customer’s objection to something, and the objection is in practice an objection to a protected religion or belief (for example, an objection to working with a Muslim woman wearing a headscarf), then the religion or belief is the reason for any less favourable treatment by the employer.

Practical advice 

Businesses can take proactive steps to avoid issues arising in the workplace:

• Employers need to be careful not to tolerate certain beliefs while censoring others, recognising that even beliefs that are offensive to some members of staff may still be protected under the law. 
• Businesses should review and update internal policies, making clear what conduct is considered unacceptable. Training on promoting diversity and inclusion in the workplace, and respecting different opinions and viewpoints, may be helpful and assist employers in defending discrimination claims.
• A well-publicised social media policy is essential, providing guidance on appropriate forms and manner of communication. It is sensible to require employees to distinguish their personal views from those of their employer.
• Managers should ensure that they can justify any disciplinary or other unfavourable action taken in respect of an employee for reasons relating to their expression of belief.  In particular, employers should avoid disciplining someone for a reason that is indissociable from the employee’s belief.
• Training should be given to managers on how to deal with difficult issues sensitively, effectively and proportionately, and how to resolve tensions in the workplace arising from different viewpoints.

Ultimately, employers have a duty to provide a safe system of work and to take action to prevent an intimidating, hostile, degrading, humiliating or offensive environment for their staff.  At the same time, they must not discriminate against employees because of a protected belief. This balance can be difficult to strike.