D-BRIEF – Employment & Pensions Blog: Gender critical beliefs

In Fahmy v The Arts Council England, the Employment Tribunal has recognised that gender critical beliefs can be protected under the Equality Act.

Facts

The Claimant was employed as a Relationship Manager by The Arts Council (“Arts Council”) England and was a long-standing employee. She held “gender critical” beliefs such as people can't change sex, that sex shouldn't be conflated with gender, and that trans people retain their biological sex. In March 2022, the Arts Council awarded the LGB (lesbian, gay and bisexual) Alliance a grant. The grant was widely criticised by employees of the Arts Council on the basis that the LGB Alliance has a history of anti-trans activity.

During an internal meeting at which the grant was discussed, a senior manager expressed his view that the grant had been a mistake because of the anti-trans activity of the alliance. The Claimant challenged his statement and asked how gender critical views were protected within the organisation.

Following the meeting an employee sent an all-staff email to sign a petition and ‘allies support sheet’ for the LGBTQIA+ working group to raise a grievance about the meeting and colleagues who expressed 'clear, homophobic, anti-trans views' during it. The email encouraged staff to comment on the petition and some comments were disparaging of gender critical beliefs and described the LGB as a 'glorified hate group'.

The Claimant complained about the petition and said it gave staff a platform to speak hatefully. She submitted a grievance and the investigator concluded she had not been targeted by the petition but held the content and tone of the email and petition could cause offence. She then brought a discrimination claim on the grounds of religion and belief in the Tribunal.

Tribunal

The Arts Council accepted that the Claimant’s beliefs and gender critical views were protected, the Tribunal therefore had to decide whether she had been harassed at the meeting and as a result of the petition.

The Tribunal commented the meeting opened the door for the subsequent petition and the comments within it and it was inappropriate for the senior manager to provide personal views whilst chairing the meeting, showing solidarity with one side of the debate. However, it found that the comments of the senior manager did not create an intimidating, hostile, degrading, humiliating or offensive environment and the Claimant had willingly been involved in the debate via the Teams chat.

The petition and accompanying email were however found to be unwanted conduct which had the purpose and effect of violating the Claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. She therefore succeeded in this part of her claim.

Comment

There has been a recent increase in the number of conflict of rights cases going to Tribunal and these have established that gender critical beliefs can be protected under the Equality Act 2010. This case in particular shows the importance of managers and senior staff remaining neutral and seeking to limit any all-staff debate over email which could cause offence and be found to be harassment.

It is a helpful reminder to employers that careful consideration and balance needs to be given to allow employees the right to hold opinions which others may disagree with or which don’t align with their values. Employers should clearly set out a standard of behaviour they expect from employees which they expect everyone to follow. It also highlights the fine line that employers now need to tread to ensure all beliefs are respected in the workplace, even if they have the potential to offend.