Discrimination against philosophical beliefs – new landmark tribunal judgment delivered
The law on discrimination against religious belief is well known and some recent cases have served to define further what a belief is, extending the protection of Section 10 of the Equality Act 2010 (EA 2010) to strongly-held philosophies and beliefs that satisfy the requirements of the law.
A case in the news now has broadened the scope of the Equality Act further still by tackling the question of how wide the protection offered by Section 10 can go.
Maya Forstater was a tax expert and worked for the Centre for Global Development (CGD) as a Visiting Fellow. In 2018, as reforms to the Gender Recognition Act 2004 (GRA 2004) were being proposed, she began to tweet about the issue on her own Twitter account. These tweets came to the attention of her employer via colleagues who complained that her views were ‘transphobic, offensive and exclusionary’. She denied that this was either her intention or her belief. She had been stating her sincerely held view that biological sex was real and immutable, not to be conflated with gender identity and that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not expressions of antipathy towards trans people or “transphobic”.
Nevertheless, CGD did not renew her contract, effectively dismissing her. She brought a claim at the employment tribunal that she had been discriminated against on the grounds of her gender critical views under Section 10 EA 2010.
The tribunal judge ruled that whilst her views qualified for four of the five Grainger criteria (see below), they failed on what is known as Grainger 5 – that the belief has to be worthy of respect in a democratic society.
The Employment Appeal Tribunal (EAT)
After a 6-day hearing, the EAT overruled the judgment of the tribunal.
The EAT said that “gender-critical belief is not unique to the Claimant, but is widely shared, including amongst respected academics. The popularity of a belief does not necessarily insulate it from being one that gravely undermines the rights of others…However, a widely shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society.”
It also pointed out that “the Claimant’s belief that sex is immutable and binary is…consistent with the law.”
The EAT said the tribunal was wrong to assume that Forstater’s belief was absolutist and meant she would always ‘misgender’ trans persons. The EAT said that she would “generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space” but also more generally.” They went on to state that “she would usually use preferred pronouns but reserved the right not to do so where she considered that to be relevant.”
Her belief passed the Grainger 5 test, and the EAT, when explaining the scope of that test, said:
"In our judgment, it is important that in applying Grainger 5, tribunals bear in mind that it is only those beliefs that would be an affront to [European] Convention [on Human Rights] principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted…as the case may be."
The judgment added, as a caveat, that:
“This… does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity.”
The EAT said in a Note on Procedure that since its judgment had clarified the scope of Grainger 5 to show what would fall outside its now wide protection, a tribunal holding a preliminary hearing to decide whether a belief falls within Section 10 should generally not take up more than a day of the tribunal’s time.
Having determined that Forstater’s beliefs were protected under Section 10 of the EA 2010, the case was sent to a new tribunal to determine whether her treatment was due to – or related to – those beliefs.
That tribunal has now handed down its judgment. They said that the following complaints under the Equality Act were well-founded:
1. Direct discrimination because of belief by a decision not to offer her a contract of employment.
2. Direct discrimination because of belief by a decision not to renew her Visiting Fellowship.
3. Victimisation by the removal of her profile from the CGD website.
The Tribunal found that the decisions not to offer Forstater a full contract of employment and not to renew her Visiting Fellowship were taken at least in part because of her belief, and therefore amounted to direct discrimination. The reasons for deciding this include a finding that the way in which Forstater expressed her belief, in particular in tweets, was not such that objection could reasonably be taken to it, when considered in the context of the ongoing debate.
On the complaint of victimisation, the Tribunal found that CGD had failed to provide an adequate explanation for the removal of Forstater’s profile from their website, against the background of her recent previous allegations that she had been discriminated against. The Tribunal applied the provisions in the Equality Act about the burden of proof and found that Forstater had been victimised because of her previous allegations.
Remedies will be determined at a future hearing.
What does the law say?
Section 10 of the EA 2010 makes harassment, victimisation and direct or indirect discrimination against a person based on their religion or belief (or lack thereof) unlawful. However, Section 10 of the EA 2010 also mentions philosophical belief, and this has proved rather harder to define.
The landmark case for deciding the eligibility of a philosophical belief for protection under the EA 2010 is Grainger plc v Nicholson (2009).
In this case, Nicholson (the claimant) had a belief in man-made climate change and this meant that when he was asked to return to the head office to collect a forgotten phone, his objection to unnecessary air flights meant that he felt duty-bound to refuse. He was made redundant soon afterwards. He claimed that this was discrimination on the basis of his beliefs as other employees, who did not share his beliefs, were not made redundant, and was able to show that his belief did in fact inform his entire life, since he had adopted carbon neutral measures in several areas including vehicular travel and house design.
In its judgment on the case, the EAT helpfully laid out five tests that should be applied to any belief to determine whether it could be counted as a philosophical belief for the purposes of equality legislation. They are:
(i) The belief must be genuinely held;
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available;
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour;
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance; and
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
What should employers bear in mind?
The decision, as with those before it, shows employers what they should look out for when allegations are being made of discrimination on the grounds of a philosophical belief.
As can be seen by the degree to which Forstater’s case hinged on Grainger 5, the five tests will continue to be used as a yardstick by which all claims of discrimination on the grounds of philosophical belief will be judged.
The definition of a philosophical belief has been first set out in principle and then slowly expanded upon until we now have, in effect the outer limits beyond which a belief will not be protected by law. There is a considerable distance between Nazism and the views expressed by Forstater on the immutability of biological sex; as the EAT said “the Claimant’s belief does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism” – but the judgment has shown that, in essence, that distance is safe territory for the expression of beliefs, provided of course that it is done in a respectful manner. As the EAT said, people who hold opposing beliefs must tolerate each other, even if they find such beliefs offensive.
However, egregious behaviour intended to shock, hurt or provoke – such as deliberate and gratuitous use of offensive language in the workplace - will be much less likely to find protection under Section 10 of the EA 2010 and could be counted as unlawful harassment.
It’s important for employers to note that if a dismissal is found to have taken place for a discriminatory reason, the qualifying service period of 2 years, which usually disqualifies a claim for unfair dismissal, will not apply.
Equally significant is the fact that compensation for a dismissal due to discrimination has no cap to the amount that can be awarded, and the court or tribunal may also rule that an injury to feelings award is also payable. Full details of the award relating to this case will become apparent when the remedy hearing takes place.