Another warning to employers: recognise that gender critical beliefs are protected under the Equality Act or prepare to be sued

In Fahmy v The Arts Council England, the tribunal had to decide if an employee who had expressed gender critical views at work had been harassed by colleagues opposed to her views, and if so, whether the employer had taken all reasonable steps to prevent this. 

Facts

Ms Fahmy was a long-standing employee of the Arts Council. She believes that people can't change sex, that sex shouldn't be conflated with gender, and that trans people retain their biological sex. These beliefs are often referred to as 'gender critical' beliefs. 

The Arts Council provided funding for the LGB Alliance to make a film. The LGB Alliance was set up to provide 'information and community to men and women who are same-sex attracted' and focused on lesbians, gay men, and bisexual people. It believes that their priorities are different from those of trans people who are supported via other organisations. Excluding trans people from its remit has resulted in accusations that it's 'transphobic'. And once news got out that it had obtained funding, pressure via social media led to the grant being suspended.

The Arts Council held a 'drop in' session to allow staff to discuss this, via a video meeting and Teams Chat. Over 400 members of staff participated and around 25 people actively contributed (including Ms Fahmy). The session was chaired by a senior manager and he expressed his 'personal views' that the LGB Alliance was 'divisive' and had a 'history of trans-exclusionary activity' and that the grant had been a 'mistake'. Ms Fahmy challenged him about his statements and specifically asked how gender critical views were protected within the organisation. 

After the meeting ended, the senior manager contacted Ms Fahmy to acknowledge that the session 'must have been uncomfortable' for her and that she might be feeling 'a little isolated and bruised'. He adopted a more emollient tone and said that conflicting beliefs are hard to resolve and that everyone should be able to express their views in an open and respectful manner. Ms Fahmy denied that she felt isolated or bruised and that other people shared her beliefs but were too frightened to say so in public because of the potential backlash. 

The same day another employee sent an email to all staff encouraging 'allies' to sign a petition they had created with a view to making a formal grievance about the way the drop in session handled the issue, colleagues who had expressed 'clear, homophobic, anti-trans views' during it, and to complain about the lack of training on trans issues. It encouraged staff to comment and several posted, what the tribunal described as, 'extremely offensive comments'. These equated GC beliefs to 'cancer' and a form of 'bigotry', and described the LGB Alliance as a 'glorified hate group' supported by 'neo-Nazis, homophobes and Islamaphobes'. The author of the petition was immediately suspended but the petition remained live for over 24 hours.

Ms Fahmy's line manager wrote to senior management to express concerns about the petition and its impact on her. She said that it encouraged staff, to write as though they were on Twitter and that some of the comments directly targeted Ms Fahmy. She complained that the continued presence of the petition gave staff a platform and licence to 'speak hatefully against anyone who doesn't hold their beliefs' and should be taken down.

Ms Fahmy submitted a grievance about what had happened. The investigator concluded that she hadn't been targeted via the petition but accepted that it was capable of causing offence to people with GC views. Ms Fahmy brought a claim of discrimination on grounds of religion or belief and later resigned.

Tribunal decision

The Arts Council accepted that Ms Fahmy's beliefs were protected. The tribunal therefore had to determine whether she had been harassed during the drop in session and as a result of the petition. 

1. Drop in session

The tribunal said that it had been unwise for a senior manager to express his personal opinions which aligned with one side of the argument, but this did not cross the threshold of creating an intimidating, hostile, degrading, humiliating or offensive environment for Ms Fahmy. It said that she had willingly engaged in the debate, was aware that it was a controversial issue, and the responses to her comments had not come as a shock to her. Nor did it believe that the comments expressed by colleagues had harassed her.

2. Petition

The petition and comments that accompanied it did harass Ms Fahmy and were designed to create a hostile environment for her, and she succeeded with this part of her claim. 

3. Reasonable steps defence

The Arts Council argued that it wasn't liable for the actions of its staff because it had taken all reasonable steps to prevent the harassment. Specifically, it had immediately suspended the author of the petition, had taken disciplinary action against two other employees who had posted comments, and had a Dignity at Work Policy. 

The tribunal concluded that that this wasn't enough to make out the defence because:

• The policy wasn't up to date
• It referenced gender which isn't a protected characteristic and omitted sex and belief discrimination which are
• It knew that it needed to update its training to include belief discrimination but had not found a suitable trainer to facilitate this.

Learning points for other employers

We are seeing a steady flow of conflict of rights cases being litigated - usually because employers misunderstand the law around belief discrimination and/or pick a side in the debate. It's now well established that people who believe that sex is immutable and can't be changed are protected under the Equality Act 2010. But other beliefs, also expressed to be 'GC' have also been protected including: the 'pernicious effect of Stonewall's campaign promoting gender ID'.

Individuals that have lost their jobs for expressing gender critical beliefs and are increasingly using crowd funding platforms to fund their legal costs. These cases generate huge amounts of media interest, speculation, commentary and debate - all of which can damage an employer's reputation. Plus, the tribunal hearings are often 'live tweeted' which exposes the parties to a potentially huge audience.

There's no doubt that this is a difficult debate. But, employers need to recognise that their staff have the right to hold opinions that others may vehemently disagree with and/or which don't align with their values. Their staff also have a right to express those beliefs, although employers can (and should) set out the standards of behaviour they expect them to follow to ensure that any disagreements are expressed in moderate tones and that they don't label people as transphobes, bigots etc, describe their views as hateful or encourage other people to wade in to support their side of the argument.  

My own view is that it's not appropriate for managers to express their own personal views in highly charged situations (like the drop in meeting in this case) because:

• Employees may interpret this as representative of the organisation's view and this could encourage them to harass staff who have opposing beliefs; and
• It will be more difficult for employers to say that its decision makers are impartial if they have to investigate complaints or deal with disciplinary sanctions.

In this case, the tribunal said that the managers own views on GC beliefs empowered some employees to launch a petition and encourage people to pile in on those who disagreed with them (ie: Ms Fahmy). I think that a different tribunal could have reasonably concluded that the comments of the senior manager were unlawful harassment. 

Our new D&I training modules

We have created two new online diversity and inclusion modules to help employers properly train staff. One applies to all employees, and the other focuses on line managers to help them to understand the key role they play in ensuring that the people they manage behave appropriately. These modules cover all protected beliefs and include examples to help managers understand the legal issues they need to consider when dealing with conflict of belief cases. If you'd like to know more about these, please speak to Charlotte Rees-John, Jenny Arrowsmith or Gordon Rodham.

Our newsletters

We publish monthly employment newsletters. If you'd like to be added to the mailing list, please let me know. 

Our fixed price employment law service

We also have a fixed price employment law service. Please contact Gordon Rodham if you'd like to find out how we can help you avoid these sorts of problems, or need help to resolve any other employment law issues, with our fixed-fee annual retainer, or flexible discounted bank of hours service.