At a glance

• Qualifying philosophical beliefs are protected from discrimination under section 10 of the Equality Act 2010 (EqA).
• An Employment Tribunal held that an employee had been discriminated against and constructively dismissed because of her gender critical beliefs.

Background

Ms Adams worked for Edinburgh Rape Crisis Centre (ERCC), which advertised its jobs and volunteer positions as for women only. At the time Ms Adams joined ERCC, it provided its services to women and all trans-identified or non-binary people.

Ms Adams holds gender critical views. While supportive of individuals who are trans, she does not believe that gender identity is in all circumstances more important than sex.  Ms Adams believes that biological sex is real, important, immutable and not to be conflated with gender identity. She believes that survivors of sexual violence should be able to choose whether they wish to engage with male or female support workers.

Ms Adams became concerned with ERCC’s approach with regard to gender identity. A trans woman (without a gender recognition certificate) was appointed as the new CEO of ERCC and following this appointment Ms Adams’ concerns grew.

One of Ms Adams’ colleagues identified as non-binary and had recently adopted a new name which sounded and appeared to be male. A service user queried whether the colleague was a man or a woman, noting that “as a woman [they] would feel very uncomfortable talking with a man.”  Ms Adams suggested they respond that the colleague was a woman at birth but now identifies as non-binary, which the colleague (who was copied to the email) said they found humiliating. Before the matter has been investigated, the CEO emailed the non-binary colleague stating that what Ms Adams had done was humiliating and that they would ensure there was “no more contact with her”, and implying that Ms Adams was transphobic.

A flawed investigation and disciplinary process followed which found that Ms Adams had engaged in behaviour likely to cause distress to a colleague or colleagues. The outcome letter stated that this would ordinarily have resulted in a warning but on this occasion no further action was taken due to the prolonged nature of the process. Ms Adams appealed and her appeal was not upheld. Ms Adams felt ERCC was failing to engage with the actual issues. Ultimately Ms Adams resigned and brought claims of constructive unfair dismissal and discrimination linked to her gender critical beliefs or lack of belief in gender identity.

Outcome

Ms Adams was successful in her claims. The tribunal found that Ms Adams had been harassed and the Tribunal also considered whether the same acts would amount to direct discrimination, which it found they would.

“In our view the claimant’s gender critical views were the reason behind her treatment and accordingly these acts would amount to harassment.”

The Tribunal also found that indirectly discriminated against Ms Adams by treating manifestation of gender critical belief or lack of belief in gender identity theory as a disciplinary matter and this could not be objectively justified. Further, the Tribunal held that ERCC had breached the implied term of mutual trust and confidence and Ms Adams had been constructively dismissed. It found that the investigation should not have been launched in the first place and was “clearly motivated by a strong belief amongst the senior management and some of the claimant’s colleagues that the claimant’s views were inherently hateful” and the disciplinary process had been “deeply flawed.”

What does this mean for employers?

This case serves as a further reminder to employers that gender critical beliefs are protected under the Equality Act 2010 and that care needs to be taken not to harass or otherwise discriminate against employees who hold such beliefs, even where other employees may disagree with their beliefs.