Staff networks and external speakers: are you liable if what they say harasses an employee?

That was what the tribunal had to determine in the case of Newman v Commissioner of Police of the Metropolis. 

Facts

Ms Newman joined the Met as a trainee detective. She holds gender critical beliefs which recognise the immutability of biological sex and question policies based solely on self-declared gender identity. 

She attended a trans day of visibility event in March 2023. The event was hosted at New Scotland Yard and delegates could either attend in person or online. It was organised and promoted by the LGBT+ staff network as a ‘community event’ where speakers would share ‘their lived experience as members of the trans and non-binary community’. It was expressed to be inclusive and was open to anyone who wanted to learn about ‘trans experiences’.

Ms Newman attended online during her non-working hours. One of the speakers - Eva Echo spoke about ‘challenging the narrative’ and made a number of statements which Ms Newman found offensive. The speaker said that people with GC views displayed ‘cult like behaviour’, had ‘twisted, warped views’ and were motivated by hate. Another speaker referred to Posie Parker (a well known GC campaigner who organises public meetings to ‘let women speak’) and the audience booed and hissed at the mention of her name.

No-one objected to anything that either speaker had said and the event appeared to be well received by delegates.

Ms Newman was really unhappy that Eva Echo had been booked and that no-one had jumped in to challenge what she'd said. Ms Newman said this was particularly significant given that senior officers were at the event. She complained to the Met's directorate of professional standards about what had happened and that Eva Echo had portrayed ‘an extreme, one-sided and conspiratorial view of a complex debate’. She asked if the Met would have reacted in the same way if a speaker denigrated atheists or gay people in similar terms. She also raised concerns that there was a risk that women who expressed GC beliefs would not be treated impartially by the police.

The directorate refused to investigate because, it said, her complaints were outside its remit. After considering a couple of other avenues, she raised a grievance. That was also rejected on the basis that it was about a speaker who was not employed by the Met and therefore didn't fit within its ethos of ‘resolution and learning’. 

Ms Newman brought proceedings against the Met for direct discrimination (relating to its refusal to deal with her complaints) and harassment on the grounds of her GC views. 

Tribunal decision

Ms Newman alleged that she had been harassed by the Met because: 

1. It had booked a political activist known for their hostile views towards GC people who was likely to express those views at the event
2. It issued a universal invitation to attend the event knowing GC people were likely to be amongst the attendees
3. Its officers had applauded Eva Echo and hadn't challenged what she's said or tried to curtail her talk; and 
4. The audience had hissed when Posie Parker's name had been mentioned and no-one had intervened to stop or challenge this.   

The tribunal accepted that Eva Echo (a trans woman) ‘was capable of strong criticism of those with GC views’ and had made derogatory statements about them at the event. It also accepted that no-one had intervened. In terms of the invitation, it found that the organisators hadn't considered whether people with GC beliefs would attend.

The major stumbling block for Ms Newman was that Eva Echo was not employed by the Met and was, effectively, a third party. Under the Equality Act, employers are only liable for harassment by a third party where the protected characteristic formed part of its motivation for not doing something about what had happened.

The tribunal therefore focussed on what the Met actually did, rather than what Eva Echo had said. It concluded that it hadn't set out to harass people with GC beliefs and the event organisors hadn't acted out of hostility towards them. In fact, they hadn't considered them at all. This knocked out the first two allegations of harassment.

In order to determine the remaining allegations, the tribunal had to consider whether Eva Echo's speech met the threshold for liability under s26 of the Equality Act. In other words, did it violate Ms Newman's dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment which was ‘approved’ by those present. 

The tribunal had ample evidence of Ms Newman's reaction: she'd written contemporaneous notes and had exchanged WhatsApp messages with a private GC group which explained what had happened and how she felt about it. It therefore accepted that she had been upset and disturbed by what she had heard.

It then turned to the objective part of the test. Was it reasonable for Ms Newman to feel this way in the circumstances? It said it wasn't because:

• She knew it was a partisan event and was ‘fully aware that the debate was heated and involved strong expressions of belief and frequent ad hominem attacks on both sides’ 
• Eva Echo had a right to express views that are potentially shocking or offensive (under Article 10 of the Convention)
• Delegates had the right to hear those views; and
• The event had been put on to help delegates understand a particular set of beliefs and that would result in ‘feelings evoked by the conflicting belief system’. 

It also said that there was no evidence that the Met's reaction (or, more precisely its lack of action) translated into creating a hostile, degrading etc environment for her. It couldn't therefore conclude that the officers in attendance ‘wholeheartedly approved of, condoned or endorsed everything they heard and all the views that were expressed’ and it was wrong of Ms Newman to conflate the two. 

The tribunal also rejected her direct discrimination claim. It didn't accept Ms Newman's assertions that the Met had been ‘institutionally captured’ by gender ideology and found that her complaints had been rejected because they didn't fit within its internal processes - and not because of her protected beliefs. 

It recognised that there was ‘no obvious route’ for Ms Newman to raise her concerns, but put some of the blame for this on her because she hadn't raised these with her line manager (it didn't say what they would have been able to have done to resolve it). And, in terms of her grievance, she had refused to blame named officers. It noted, however, that in response to Ms Newman's litigation the Met had made substantial changes to how it accommodates GC beliefs, and more generally, engages external speakers.

Tips for other employers

This decision raises significant questions for those organisations that give staff networks free rein to organise events and invite external guests to speak at them.

Under s109 Equality Act 2010 employers are primarily liable for anything done by a member of their staff in the course of their employment and for the actions of an agent - even if they are done without their knowledge or approval. The only way you can get around this is to demonstrate you took all reasonable steps to prevent the discrimination or harassment from occurring. 

In this case, Eva Echo was instructed by one of the Met's staff networks, had not been approved by it and, at the time, there was no policy in place which required organisors to vet speakers. The network had considerable autonomy and there was no oversight from senior offices. The tribunal was therefore able to conclude that the event had not been ‘put on’ by the Met. But it accepted that the Met had faciliated it: senior officers attended and gave credence to the event which indicated they supported what was being said. 

The tribunal therefore made it clear that the Met would have been liable for any harassment/discrimination that took place under s109 - by its employees or officers. It would not, in my view, have been able to successfully argue that it had taken all reasonable steps to prevent it from happening given that it did next to nothing to check what was going to be said or intervene when comments crossed the line.

The position may have been different if the Met had instructed Eva Echo to deliver training to its staff, and was exercising authority conferred by the Met on its behalf. In those circumstances, the tribunal may have accepted that Eva Echo was acting as its agent and was therefore responsible for their speech.   

Next year, new rules come into force which will make employers responsible where a third-party harasses a member of staff in the course of their employment. You won't be able to escape liability unless you have taken all reasonable steps to prevent it. 

In the context of inviting external speakers to deliver training or to speak at events, you will not be able to demonstrate this unless you:

• Undertake due diligence to ensure that the speaker is qualified to talk on the subject matter, understands the law and is not likely to go off piste and say something that could land you in legal hot water
• Ensure that they have the skills to deal with challenging questions and differences of option (take a look at Borg-Neal v Lloyds Banking where the reaction of a trainer to a racist word used by a delegate in the context of a discussion about race discrimination, resulted in a successful legal claim by the delegate); and
• Make it clear that they must not use the event to promote their own beliefs on issues where there are a range of different viewpoints.   

In terms of harassment, the law requires person complaining about what has been said or done to demonstrate how it affected them. That's looked at subjectively. Unless the employer (or someone acting on their behalf) intended to harass an employee, the tribunal will then consider whether it had that effect. And that's were the objective element comes in. The threshold is robust and caselaw demonstrates that not every upsetting incident relating to a protected characteristic is harassment. 

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