Discrimination: are your staff forums and networks putting your organisation at risk?

Last month I examined the legal risks for employers that allow staff networks to invite unvetted external speakers into the workplace to train their staff about diversity and inclusion: Staff networks and external speakers: are you liable if what they say harasses an employee?

Another interesting case has recently been handed down on the similar theme. Wilkins v Defence Science and Techology Laboratory considers the risks of allowing staff to debate wider social issues via their communication platforms without setting down non-discriminatory ground rules. 

Facts

Mr Wilkins is an engineer and worked for an executive agency of the Ministry of Defence for 15 years. He believes that sex is biologically immutable and that it was much more important than gender identity or gender expression. This is often referred to as ‘gender critical’ (GC) beliefs. 

His employer had a communication platform (called ‘distillery’) which staff used to communicate and share views about work and non-related matters. It also had a group, known as PRISM, whose members published articles and blogs on the platform about LGBT+ issues. 

The first post

In August 2021, a member of staff used the platform to criticise an award that had been made to a prominent scientist. The author accused the scientist of transphobia and said she was part of a movement that had ‘fuelled the increase in violence against the LGBT community’. Staff added comments including one that said the award emboldened transphobes.

Mr Wilkins complained to the moderator and flagged the post as ‘abuse/slander’. The writer edited the post, but it was removed a few days later after the scientist complained about what had been said about her. 

The second post

In October 2021 a further article was published which referred to ‘dog whistles’ and called academic Kathleen Stock a TERF (a derogatory term used to refer to women with GC views), and implied that she taught students that trans people don't exist. Mr Wilkins again complained to the moderator and said that the feed was creating a degrading and hostile environment for people who agreed with Professor Stock. Nothing was done for five weeks. The moderators did act but only focussed on the stuff they believed were slanderous. As a result the post was edited to remove those elements. 

That in turn led to the original author complaining that the moderators were suppressing content about trans and non-binary people and accusing Mr Wilkins of unlawful harassment and discrimination. He and another colleague said that Mr Wilkins should be disciplined and needed to apologise. 

Mr Wilkin's wasn't informed about this until January 2022 during a meeting with his line manager. Mr Wilkins asked him whether people with GC views were free to work in the organisation and to express their beliefs. His line manager confirmed that they were provided their discourse was respectful. He also said that the organisation was also working with ‘people of the other view’ to help them understand this. Mr Wilkins agreed to wait and see what happened.

The third post

In January 2022, another employee posted that she didn't feel safe at work, in response to an anonymous post Mr Wilkins had made on an external site which said that people with GC views were not welcome in the organisation. The employee said that she was ‘genuinely afraid that the alt-right and [that] actual Nazis … will target me'. This prompted comments from colleagues which broadly agreed that anyone with GC views should keep them to themselves at work.

Mr Wilkins complained.

Grievance

In March 2022 a colleague of Mr Wilkins reported him for liking a LinkedIn GC post which she said was a ‘dog whistle to transphobia’. She said that his behaviour should be referred to security and HR. Security quite rightly said that it was not an issue they needed to get involved in and it fell to Mr Wilkin's line manager to talk to him about the complaint. He told Mr Wilkin that he needed to consider the impact that his posts had on others.

Mr Wilkins lodged a formal complaint. He said that the people with GC beliefs were subjected to an intimidating, hostile, degrading and humiliating environment and this was causing him stress and anxiety which was impacting his work and family life. HR asked for additional information and Mr Wilkins set out what had happened over the previous months and provided links to the offending articles/comments. He made it clear that he believed the organisation had picked a side and allowed colleagues to ‘aggressively attack [him] based on [his] protected characteristics.’

HR met with Mr Wilkins to talk through his complaints. The HR manager said she needed to take advice and would revert back to him.

The fourth post

In June 2022, a senior manager posted about the Gender Recognition Act and transgender women in sports which he supported. Mr Wilkins queried whether it was appropriate for a senior leader to assert that recent changes were going in the wrong direction and to encourage staff to write to their MP about this. The manager told Mr Wilkins that he could hold GC views but could not express them in the workplace. Mr Wilkins wrote back to him, highlighting the inconsistency of approach between those people expressing GC views and those supporting LGBT+ views.

Mr Wilkins held a further meeting with HR, during which HR indicated that they might want to challenge whether his GC views were, in fact, protected. The HR advisor also admitted that some members of PRISM were ‘really militant’ and that was the reason why his manager had spoken to him about his comments.

The fifth post

During a ‘townhall’ meeting in the summer of 2022, an employee posed a question, which essentially asked if someone with GC views could work in the organisation. A senior manager responded by saying that people should not promote/state GC views and he did not ‘expect to hear gender criticality in the workplace’. This prompted a pile on by staff who commented that GC people were transphobic and bigoted.

Mr Wilkins met with HR again and raised concerns about these posts. HR said the situation was being monitored.

Resignation

Mr Wilkins resigned in November 2022. His letter accused the organisation of harassment and explained that senior leaders had reinforced that environment. He said that he wanted his grievance to be dealt with during his notice period and the organisation should: 

• Make it clear that GC views were allowed in the workplace and correct previous statements to the contrary
• Apologise to those people who had been affected by the environment it had created; and
• Amend its line manager's guide to reflect the accurate legal position

A senior manager responded to the allegations in, what the tribunal found was in a ‘markedly different tone’ to previous correspondence. Despite the numerous, well documented complaints Mr Wilkins had made over the previous 15 months, he said that Mr Wilkins had not highlighted any bullying or harassment at work, and that he was closing his complaint. He also said that Mr Wilkins could not take his grievance any further even though he had not exhausted the process.

Mr Wilkins brought claims of unfair constructive dismissal, harassment, direct discrimination and victimisation.

Decision of the tribunal

The tribunal started by making some general findings about the case. It made the point that there is no hierarchy of rights and that, where conflicts arise, employers have to balance competing rights.

It said it should have been ‘abundantly clear’ to the respondent that Mr Wilkins had raised valid concerns they needed to consider. However, it was hostile to his beliefs and assumed that anyone holding them ‘must be a transphobe’ and this, in itself, was an unlawful stereotype. There was a marked difference in how it approached posts expressing support for gender identity compared to those which expressed GC views. The organisation had aligned itself with a ‘powerful lobbying group’ and had lost sight of the rights of other workers, such as Mr Wilkins.

This failure stemmed from the fact they didn't understand that GC views are protected as a philosophical belief. Mr Wilkin's complaints were not taken as seriously as any other complaint of discrimination would have been.

Harassment claims

The tribunal then looked at the specific posts, and whether each of these had harassed Mr Wilkins. It found that the first and second posts, which primarily critiqued the views of two third parties had the effect of creating a hostile environment, but didn't meet the objective element of the test. 

But the third post ‘crossed a line’: the comments referred to Mr Wilkins as ‘sad and pathetic' and a 'rubbish employee’ and were designed to attack him. This created a hostile and intimidating environment for him and anyone else who shared his views.

The fourth post also harassed Mr Wilkins. It was written by a senior manager who deliberately aligned himself with one side of the debate. He had tried to persuade people with GC views to ‘see the light’ and it was entirely reasonable for Mr Wilkins to view this as an act of harassment. The failure of the organisation to remove this post was a further act of harassment.

The fifth post also harassed Mr Wilkins - not least because it layered on what had come before. The tribunal also accepted that a senior manager has said he didn't want to hear GC views in the workplace and clearly, that amounted to harassment. 

It found that the senior manager had lost sight of his obligation to be impartial in line with the Civil Service Code, and his reaction to Mr Wilkin's resignation also harassed him. He rejected Mr Wilkin's complaints out of hand and refused to allow him to escalate his complaints under the organisation's own complaints process. 

Direct discrimination

The tribunal also found that the failure to remove some of the offending posts and comments from the system also amounted to direct discrimination.  

Victimisation

Mr Wilkin's didn't succeed with any of his victimisation claims. The tribunal accepted that he made a number of protected acts but found that he had not been subjected to a detriment for making these. The delays in responding to his concerns were due to the ‘blasé’ approach of HR and its failure to understand Mr Wilkin's viewpoint. 

It found that the senior manager's response to Mr Wilkin's resignation did subject him to a detriment because he'd said he was going to bring a claim. But the claimant hadn't pleaded it properly and it could not find in his favour on this point. 

Constructive dismissal

The tribunal accepted that Mr Wilkin's had resigned in response to these breaches. He consistently told his employer about the damage the posts were doing and the effect it was having on him, but it ‘remained impervious to those entreatries’. The employer had ample opportunity to address his concerns but elected not to do so.

Mr Wilkin's did not affirm the breach by resigning only when he had found a new job, or by working his three months' notice. 

His dismissal was also an act of philosophical belief discrimination.

Comment

It's difficult to know where to start with this. There's no excuse for an organisation as large as this to fail to understand that GC beliefs are protected. The EAT's decision in Forstater was handed down in June 2021 - a couple of months before Mr Wilkin's first complained about articles and comments posted on the staff discussion platform. That decision was widely reported and it's difficult to see why the organisation, and it's senior managers didn't appear to understand it, even months later. Mr Wilkin's drew their attention to the case so even if we, charitably, assume this decision had passed them by, they should have taken the trouble to read it and, if necessary, take advice on it. 

What's particularly shocking is that Mr Wilkin was harassed simply because he held GC views, and not just because of the way he had expressed them. He raised complaints politely and professionally and gave his employer ample time to resolve the situation. 

I find it difficult to understand why the organisation defended the claim so vigorously. It picked a side, ramped up the harassment, and then tried to claim that it hadn't attacked Mr Wilkin's beliefs. 

This case also demonstrates the risks to organisations whose staff have networks that are allowed to use information systems to post their thoughts and feelings about societal issues. You are legally responsible for the views and words posted by your staff even if you don't endorse them. As the tribunal said in this case:  

‘We do not accept that the fact that it was an individual viewpoint and not one necessarily endorsed by the Respondent itself would make any difference. If one was to place an overtly racist blog up on the system, the fact that it would be the personal view of the individual posting would make no difference to the Respondent’s liability for it. … We also do not accept that the answer was for the Claimant simply not to read certain blogs. The blogs are put out there to influence and educate others and it is not unreasonable or wrong for the Claimant to wish to keep abreast about the information that is being put out and potentially influencing his colleagues. If discriminatory material is being posted the answer is not “don’t read it if you don’t like it” but should be “don’t post it”. ’

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