At a glance
- Qualifying philosophical beliefs are protected from discrimination under section 10 of the Equality Act 2010 (EqA). Following a line of cases involving claimants with gender critical beliefs, it is clear that such beliefs qualify for this protection.
- An Employment Tribunal has decided that a professor who expressed gender critical beliefs was directly discriminated against, victimised and harassed because of those beliefs and constructively dismissed.
Background
Ms Phoenix was employed by the University as a Professor of Criminology until her resignation in 2021. Ms Phoenix holds gender critical beliefs ie she believes in the immutability and importance of biological sex which comes from the fact that being female is something she has always believed and is core to who she is. Ms Phoenix expressed those beliefs publicly, including by co-signing letters to the Guardian and the Sunday Times. Colleagues at the University objected to Ms Phoenix’s beliefs and made this clear in their dealings with her, including one who likened her to a ‘racist uncle at the Christmas dinner table’.
In 2021, Ms Phoenix and others launched the Gender Critical Research Network (GCRN), which was intended to be a research group to promote research into sex, gender and sexualities from a gender critical perspective. Following this, an open letter signed by 368 staff members and postgraduate researchers, responding to the launch of the GCRN, was published on google docs (so was publicly available). The open letter called on the University to withdraw support for the GCRN, affirm its position as a trans inclusive employer and commit to developing a plan of action for supporting trans students and staff.
Shortly afterwards Ms Phoenix raised a grievance, saying she had been ostracised, silenced, bullied and harassed because of her beliefs and/or her colleagues’ perceptions of her beliefs. She said she had been subjected to a death threat and feared more, and that there was enormous damage being done to her professional reputation and mental health because of the open letter.
Following a statement from the Vice Chancellor that she felt was unlikely to discourage further harassment, Ms Phoenix resigned with immediate effect, citing her treatment over the previous two years and ‘being made to feel like a pariah’.
Ms Phoenix brought claims of direct discrimination on the grounds of philosophical belief, harassment, victimisation and constructive dismissal, among other things.
Outcome
In its judgment, the Employment Tribunal noted that its role is to determine the case before it, and that it does not take any side in the ‘trans gender debate’.
Applying Grainger, it found that Ms Phoenix’s beliefs fall within the Grainger criteria and were therefore protected.
The Tribunal upheld various of Ms Phoenix’s complaints of direct discrimination, harassment and victimisation. It also upheld her constructive dismissal claim, finding that the University had breached the implied term of trust and confidence and the duty to provide a suitable working environment.
“Following a line of cases involving claimants with gender critical beliefs, the Tribunal found that the claimant’s belief was protected under the Equality Act and that she had been discriminated against and constructively dismissed”
What does this mean for employers?
This case follows a line of other cases involving claimants with gender critical beliefs, including the widely publicised Forstater decision. It serves as a further reminder of the difficulties that can arise for employers when trying to balance conflicting protected characteristics.
While other colleagues may object to views that another employee holds or find them offensive, employers need to be mindful that such views may be protected under the Equality Act 2010. In some cases, such views could amount to harassment or discrimination, but the Employment Tribunal found that there was nothing about Ms Phoenix’s gender critical beliefs that amounted to harassment or discrimination on the facts of this case.
Employers should try to remain balanced and avoid prioritising one protected characteristic over another, even where there may be significant pressure to support one side of the debate (as was the case here).