At a glance
- ‘Gender critical’ beliefs are those held by people who believe that sex is real, important, immutable and not to be conflated with gender identity. These amount to a philosophical belief qualifying for protection under section 10 Equality Act 2010 in accordance with Forstater v CGD Europe and others.
- In this case, the Employment Tribunal (ET) held that Ms Fahmy was subjected to harassment because of her gender-critical beliefs and her employer was liable for this.
Background
Ms Fahmy was employed by the Arts Council England (ACE) as a Relationship Manager from 2008. Ms Fahmy holds ‘gender critical’ beliefs, which she describes as beliefs that ‘sex is real, important, immutable, not to be conflated with ‘gender identity’ (what sex a person feels they are or would prefer to be)’. She does not believe that ‘trans women are women’ or that ‘trans men are men’. Ms Fahmy had made her beliefs known to ACE.
In April 2022 it was announced that the LGB Alliance (a charity that supports lesbian, gay and bisexual people) had been awarded a jubilee-related grant by an organisation to which ACE had given power, to make a film ‘Queens – 70 years of queer history’. Following reaction on social media, the grant was suspended.
ACE held a drop-in session on Teams for all staff where it was anticipated that the suspension of the grant would come up. There was a video meeting and a Teams chat running alongside. Ms Fahmy made contributions to the chat. In response to comments by the Deputy CEO that the LGB Alliance was ‘a divisive organisation’ with ‘a history of anti trans-exclusionary activity’ and that in his view an award to that organisation was ‘not within the spirit of the let’s create Jubilee fund which is about bringing communities together and celebrating this moment’ and a ‘mistake’, Ms Fahmy challenged the view that the LGB Alliance was anti-transgender (she was the only employee to do so) and asked how gender critical views were protected at ACE and in the arts. Other attendees of the meeting criticised her views.
Following the meeting, the Deputy CEO sent an email to all staff saying that it was important that ACE treated all colleagues with respect and dignity and expressing his personal solidarity with trans and non-binary colleagues and setting out actions ACE would be taking around this.
Subsequently, Ms Fahmy made a protected disclosure, stating that the Deputy CEO had contravened the Staff Code of Ethics. It was agreed that this would be investigated.
Another employee, SB, later sent an email to all staff, referred to as ‘allies support sheet’, with a link to a petition. This was created to raise a formal grievance about how the LGB Alliance decision was handled at the drop-in session. It included comments about the ‘homophobic/anti-trans views in positions of decision-making and members of HR’ and ‘the historic refusal to include trans awareness training’. Extremely offensive comments referring to anti-trans (gender critical) language were added to the petition, including comments from three employees referring to gender critical beliefs as ‘anti-trans’, ‘bigotry’, ‘cancer’ and ‘transphobic’.
The employee who sent the email was suspended and Ms Fahmy’s line manager emailed the CEO of ACE raising concerns, referring to comments about gender-critical beliefs being expressed during the drop-in session which she felt pointed very obviously to Ms Fahmy. Access to the petition was removed after it had been up for around 26 hours. Ms Fahmy raised a complaint under the Dignity at Work policy.
After her whistleblowing complaint was not upheld internally, Ms Fahmy brought claims of victimisation and harassment on grounds of religion or belief.
Outcome
It was not in dispute that Ms Fahmy’s gender-critical beliefs were protected under section 10 of the EqA following the Employment Appeal Tribunal (EAT) decision in Forstater v CGD Europe and others. The issue the ET had to determine was whether the Claimant had been harassed on the grounds of those beliefs, and if so, if her employer was liable.
The ET found that the actions of the Deputy Chief Executive did not amount to harassment, but noted it was inappropriate for him to express his personal views. However, it was found that the email from SB and petition comments did amount to harassment.
ACE’s defence that it was not liable for the actions of its employees because it had taken all reasonable steps to prevent the harassment failed and the ET held ACE liable for its employees’ actions, notwithstanding that it had taken disciplinary action against a number of employees who had made comments on the petition. This was because ACE was aware of the need to update its policies and provide appropriate training with regard to the issue of belief, but it had not done so. Its Dignity at Work Policy, which had not been reviewed since 2019, made no reference to belief in the definition of harassment. While it had made enquiries about training after Ms Fahmy had raised the issue of training in respect of different positions held on trans-activist and gender-critical beliefs, ACE had not found a suitable external provider.
The victimisation claim was dismissed.
“The claim of harassment related to the protected characteristic of religion or belief is well-founded and succeeds.”
What does this mean for employers?
This case is another in the line of cases regarding claimants with gender-critical beliefs. It again demonstrates the difficulty for employers when balancing conflicting protected characteristics and protecting both trans workers and workers with gender critical beliefs from discrimination and harassment.
Employers can be liable for acts of discrimination, including harassment, by their workers in both cases. This case also highlights steps an employer can take so there might be a better prospect of relying on the ‘all reasonable steps’ defence. For example:
- ensuring Dignity at Work/ equal opportunities policies are up to date;
- ensuring policies are brought to the attention of staff and read by them;
- delivering up-to-date equality training to staff which also deals with belief discrimination;
- advising managers to be careful about when and how they express personal opinions; and
- setting standards of behaviour for staff including the need to treat colleagues with dignity and respect, explaining failure to meet such standards will result in disciplinary action being taken.