Drawing the line between protected beliefs and discriminatory actions

Ms Forstater held 'gender-critical beliefs', including her belief that a person's sex at birth cannot be changed and was different to gender identity. She engaged in debates on social media about gender identity issues, and a number of her colleagues complained that some of her remarks were offensive and transphobic. Ms Forstater's contract was not renewed as a consequence of those complaints and Ms Forstater complained that she had been discriminated against because of her belief.

Section 10 of the Equality Act 2010 sets out that philosophical beliefs are protected characteristics, which people cannot be treated less favourably for. At a preliminary hearing, the Tribunal held that Ms Forstater's belief was not a philosophical belief within the meaning of the Equality Act 2010.  She was therefore not protected from being treated less favourably because of that belief.

The Tribunal found that Ms Forstater's belief was so absolute that this meant she would "refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment". Therefore the Tribunal found that Ms Forstater's belief was one that was "not worthy of respect in a democratic society" and her belief was excluded from the protections afforded by the Equality Act 2010.

Ms Forstater appealed to the Employment Appeals Tribunal (EAT) with the Equality and Human Rights Commission (EHRC) intervening.

The Employment Appeal Tribunal Decision

The EAT disagreed with the Tribunal and found that expressing a belief that a person's sex at birth cannot be changed was a philosophical belief for the purposes of s.10(2)(a) EA 2010. They stated that whether a genuinely held belief was correct or widely held was irrelevant and they disagreed with the Tribunal's reasoning that Ms Forstater’s belief was not "worthy of respect in a democratic society". The EAT also found that a belief would only fall outside the protection of the Equality Act where it was akin to "pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms".

The EAT distinguished the issue of 'mis-gendering' from Ms Forstater's belief and confirmed that their decision did not affect transgender people's rights under the Equality Act 2010.

The EAT acknowledged that this is an extremely divisive debate and their finding does not change the law. However, it does serve as a reminder to employers of the distinction between protected beliefs and discriminatory actions.

Employees and workers with a protected characteristic, including: sex, gender-reassignment and philosophical beliefs (whichever side of an issue they fall on) will still be protected under the Equality Act 2010 from discrimination and harassment. Employers continue to be vicariously liable for discrimination carried out by their staff.

Where an employee holds a philosophical belief which is protected under the Equality Act, even if others do not agree with that belief, the employee cannot be treated less favourably for having those views. However, the way in which an employee expresses or manifests that belief, or the way they act based on that belief, can constitute discrimination and/or misconduct.

Employers will need to carefully consider the distinction between protected beliefs and discriminatory actions when dealing with complaints of misconduct or grievances. A useful example of this distinction is found in the recent widely reported case of Richard Page where he was dismissed from his position as a judge. Mr Page was held to have been fairly dismissed, not for holding the belief that same-sex adoptions were wrong, but for declaring that he would deal with same-sex adoption cases on the basis of his own beliefs, and not on the basis of the law. It was Judge Page’s admission that his actions would be influenced by his personal beliefs and not the law, which fundamentally undermined his position as an impartial and unbiased judge.

Company policies, training and communication should confirm the right to hold different beliefs whilst reminding staff that the way in which they express a belief, or act on a belief, or react to someone else’s belief, must not create an intimidating, hostile, degrading or offensive environment.

Taking this case specifically, the EAT stressed that their judgement doesn’t give staff the right to refuse to refer to colleagues by their chosen pronoun. Indeed, in Ms Forstater's case she confirmed (both on social media and in court) that she would refer to people by their preferred pronoun.