Transgender Issues in the Workplace – July 2022 Employment Law Case Update

by | Jul 19, 2022 | Blog

Transgender rights are usurping others rights, at least when it comes to Employment Law, in what I’ve called for years the “Top Trumps” of Equality.  Here’s three recent cases which address some of the issues facing the workplace in 2022, and how Tribunals are struggling with providing justice and getting it right.

Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

Facts

In Forstater v CGD Europe and others ET/22200909/2019, a tribunal found that the claimant had suffered direct discrimination when the respondent declined to renew her contract because of her expression of gender critical beliefs (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men), on Twitter and at work.

Ms Forstater believes that a person’s sex is a material reality that should not be conflated with gender or gender identity. She believes that a person’s sex is an immutable biological fact not a feeling or an identity, and therefore a ‘trans woman’ is not in reality a woman. She considered that statements such as “woman means adult human female” or “trans women are male” were statements of neutral fact and not expressions of antipathy towards trans people or transphobic.

She also brought in a booklet to the office which opposed changes to legislation.

Ms Forstater engaged in debates on social media about gender identity issues. Some staff were said to have considered those tweets transphobic and were concerned about a risk to the employers reputation.

She had a one year initial contract in 2016, and that was renewed in November 2017. In November 2018, the employer told the employee that they would not be renewing her contract. There was some question over whether she was an employee or a consultant, but the ET determined she was an employee personally providing services.

She started a claim that non-renewal amounted to discrimination on grounds of her gender critical belief which was a protected philosophical belief under the Equality Act. Alternatively she claimed it amounted to indirect discrimination or harassment and victimisation. The employment tribunal initially decided that Ms Forstater’s gender-critical belief was not a “philosophical belief” and thus not protected by the Equality Act 2010. This was because they deemed it offensive. The Employment Appeal Tribunal reversed that decision and ordered a fresh re-hearing of the case in the Employment Tribunal.

Decision

The Employment Tribunal agreed with Ms Forstater that she has suffered direct discrimination.

The tribunal found that Ms Forstater had suffered less favourable treatment following the decision not to renew her contract.

The Employer had commissioned two investigations and reports into the issues, but did not give Ms Forstater the opportunity to explain or defend herself, although the tribunal did not accept these were acts of discrimination.

The key issue was why had the employer decided not to continue the contract; and was the belief a ‘substantial reason’ or had a ‘significant influence’ on the decision.

The Tribunal concluded that her tweets and other ways in which she manifested her beliefs did in fact have a significant influence on the decision not to renew.

The second question was whether Ms Forstater had manifested her beliefs in an appropriate manner – the law here is basically whether someone’s ‘beliefs’ are “objectively offensive” or “objectively unreasonable” – and the Tribunal concluded that there was nothing objectively offensive in all but one manifestation.

Lessons to Learn

What was perhaps most interesting aspect of this case was the tribunal’s analysis of the individual communications alleged to have caused offence – the assessment of the manifestation of the belief.

If this approach is taken up by tribunals, it will mean another hurdle for the protection of a belief. Not only will one’s belief have to amount to a philosophical belief they will look at each manifestation of the belief to see if it was ‘objectively offensive’.

It is likely that this decision will be appealed. There are a couple of other key cases on transgenderism coming up too.

If you’re an employer facing claims either from someone believing they are transgender or because of issues arising out of disputes between employees on the same issues, then get in touch.

Christian Doctor was not discriminated against for refusing to address transgender people by their chosen pronoun

In Mackereth v DWP [2022] EAT 99, the EAT considered whether a Christian doctor’s belief that a person cannot change their sex/gender at will was capable of protection as a religious or philosophical belief under the Equality Act 2010, and whether conduct because the individual would not agree to use a trans person’s chosen pronouns was discriminatory on grounds of belief.

Facts

Dr Mackereth had recently joined the employer as a health and disabilities assessor (HDA) at the Department for work and Pensions.

Dr. Mackereth was a Christian, who adhered to the principles of the Great Reformation which included beliefs that the Bible was the true and inerrant word of God and the final authority in all matters of faith and practice.

His role would be to assess claimants for disability-related benefits. Generally claimants would complete an online form before any face to face assessment, but if the claimant had a mental health condition they were not required to complete the form before the assessment.

People who believed they were transgender are more likely to suffer from mental health issues, such as anxiety and depression, and therefore were less likely to have completed the online form.

In May 2018, Mackereth commenced an induction course. It was discussed how assessors should refer to someone who was transgender; the policy was to address individuals in their preferred name and title and always referred to in their presented gender. Where possible, HDAs should use their first name rather than a gender-specific form of address.

Dr Mackereth explained that due to his beliefs, he did not object to using whatever first name the service user wished, but he did object to using pronouns or titles inconsistent with their birth gender.  Dr Mackereth’s beliefs included:

  • A belief in the truth of the Bible and in particular that a person is created by God as either male or female and that sex cannot be changed at will;
  • A lack of belief in transgenderism and gender fluidity, specifically that
    • it is not possible for a person to change their sex/gender
    • ‘impersonating’ the opposite sex may be damaging to an individual’s welfare
    • Society should not accommodate or encourage anyone’s impersonation of the opposite sex
  • A belief that it would be irresponsible and dishonest for a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex.

At his previous role as an A&E doctor, the Hospital had accommodated his beliefs by allowing other doctors to see/treat transgender patients.  This was not practicable as transgender people did not typically complete the online form before a visit, and two other roles, which were non-customer facing roles, required 12 months experience which he did not have.

The following day he met with his manager for an information gathering meeting. Dr Mackereth acknowledged that while he did not intend to offend anyway, that his beliefs could be perceived as being offensive by transgender people. He was very upset by the meeting, went home. His manager called to check it was a request not to continue working, and Dr Mackereth construed it as a suspension and sought legal advice. Dr Mackereth could not change his position as “he was a Christian and could not in good conscience” refer to service users with their preferred pronouns etc. He was dismissed.

Decision

The doctor brought employment tribunal claims for direct discrimination, harassment and indirect discrimination. His case was the beliefs were Christian and thus religious beliefs protected by the Equality Act, or alternatively that they were philosophical beliefs also protected by the Equality Act.

In terms of harassment, essentially he claimed that the employer was pressuring him to renounce his beliefs.

The original tribunal dismissed the claims, finding that the Doctor’s beliefs were not to be protected – because, it said, the belief must be worthy of respect and did not conflict with the fundamental rights of others. To use the language from the Forstater case above, the original tribunal here held the beliefs were “objectively offensive”.

Dr Mackereth lost at employment tribunal, and so appealed.

The Employment Appeal Tribunal decided that the original tribunal did make a number of errors however, it held there was no direct or indirect discrimination.

The EAT said the tribunal should have concluded that some of the beliefs stated above ought to have been protected beliefs under the equality – all but the one where he believed it would be irresponsible to encourage impersonation of the opposite sex.

Dr Mackereth’s beliefs on transgenderism were protected characteristics.

However, the EAT confirmed that he had not suffered direct or indirect discrimination or harassment.

It was not direct discrimination; any other HDA not prepared to address service users with their preferred pronouns etc would have been treated the same way. Moreover, the reason the employer made its decision was because it wanted to treat service users fairly and not because of Dr Mackereth’s beliefs.

It was not indirect discrimination either because it was accepted that not all Christians would share his beliefs, and therefore it could not be said that all Christians would be affected by the policy. The tribunal also concluded the policy was justified in any event.

The tribunal noted this case touched on wider social issues and that its role is to find a balance between competing interests and determine to what extent it is permissible to restrict a persons rights to manifest their belief in the workplace.

For Dr Mackereth, despite his beliefs being protected by law, it was not unlawful discrimination for his employer to disallow this particular manifestation because of the potential impact on others – in other words – Equality Top Trumps.

Lessons to Learn

Employers do have the right to restrict the manifestation of a protected belief in the workplace where doing so is necessary and proportionate and in the pursuit of a legitimate aim.

However, the law is tricky and the Tribunals are generally very liberal in their approach.

To show this point, if the roles were reversed here and the company was a Christian company and did not wish to address its service users using their preferred pronouns but had one employee who was adamant in manifesting their protected belief, it would seem unlikely that the company would win.

If you’re an employer facing a claim in relation to transgender rights or you’re a Christian or other religious person standing up for your beliefs, then you’ll need expert advice on this very tricky area of law.

Employment Appeal Tribunal member recused due to social media comments on transgender issues

Tribunal’s are generally pro-employee, and certainly pro-liberal populist agenda types, although the recusal of a lay member of a judicial panel potentially demonstrates that Tribunals still want to be perceived as giving fair judgements.

Recusal is where a Judge is removed from hearing a case. In the Employment Appeal Tribunal, cases of importance may be hear with a judge and two appointed members (lay members) one with experience as an employer and one with experience as a representative of workers.

There are a number of grounds for recusal such as “a fair minded and informed observer would conclude there was a real possibility that the tribunal would be biased”.

In the case of Higgs v Farmor’s School, Mrs Higgs is a Christian employed as a pastoral administrator by Farmor’s School. The School received a complaint about a Facebook post created by Mrs Higgs which was critical of teaching in schools on same-sex relationships and gender being a matter of choice.

Following an investigation, Mrs Higgs was dismissed for gross misconduct. She started tribunal proceedings claiming that she had been directly discriminated against on the ground of religion or belief.

Mrs Higgs lost at the Employment Tribunal and the Appeal to that decision was delayed due to the recusal hearing.

However, prior to the appeal hearing, one lay member of the panel was recused because of apparent bias following an application by Mrs Higgs and the Church of England. The Lay Member had tweeted and showed views which:

  • Opposing gender critical views, condemning ‘gender neutral’ beliefs and those who championed them and signifying a willingness to ‘block’ such people and give no platform to people with transphobic views.
  • Being involved in specific campaigns; including taking part in a march on parliament calling for any ‘conversion therapy’ bill to cover matters of gender identity;
  • Supporting the provision of transgender affirming education in primary schools and associating with the transgender campaigning group Mermaids.

The Court ultimately decided the Lay Member should be recused.

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