At a glance
- Gender critical beliefs are protected from discrimination under section 10 of the Equality Act 2010 (EqA).
- An Employment Tribunal has dismissed an employee’s claims of direct discrimination, unfair dismissal and wrongful dismissal against his former employer in relation to his gender critical views.
Background
Mr Orwin was employed by East Riding of Yorkshire Council (Council) as an ICT Project Officer. Mr Orwin holds gender critical beliefs (that sex is biologically immutable and binary) and these beliefs satisfy the Grainger criteria and are protected under the EqA.
The CEO of the Council sent an email to all of the Council’s employees, including Mr Orwin, setting out the Council’s new policy which invited employees to add pronouns to their email signature. The email included links to guidance on the policy. The guidance did not prescribe a list of acceptable pronouns, but it did provide some examples of pronouns. Employees were not obliged to include any pronouns within their email signature.
Mr Orwin objected to the new policy, as he considered that it promoted a political ideology of self-identification which conflicted with his gender critical beliefs. In protest, Mr Orwin added the words “XYchromosomeGuy/AdultHumanMale” to his email signature. Mr Orwin was instructed to remove the wording numerous times by management but each time he refused. Following an investigation and disciplinary hearing, Mr Orwin was ultimately dismissed from the Council.
Outcome
The Tribunal rejected Mr Orwin’s claims. While Mr Orwin’s beliefs were protected under EqA, the Tribunal held there was not a sufficiently close causal nexus between Mr Orwin’s email signature and his gender critical beliefs. The Council did not treat Mr Orwin in the way that it did because of his protected belief; rather it was because of the inappropriate manifestation of that belief. The treatment was because he had used a provocative email sign off that was not acceptable to the Council and then refused to remove it.
In considering whether the Council’s response was proportionate, the Tribunal noted that Mr Orwin had a public facing role and as such his email signature carried a risk of reputational damage for the Council. Had Mr Orwin’s email signature come to the attention of the public it could have had an impact on potential service users.
Whilst the claims were dismissed, the Tribunal did note that the Council’s implementation of the policy was “poorly thought through and badly executed” and the guidance was “vague and allowed [Mr Orwin] to adopt the position [he] did.”
What does this mean for employers?
This case highlights that while gender critical beliefs are protected under the EqA, an individual may not be able to claim protection where the manifestation of such beliefs is inappropriate, for example if the beliefs go so far as to offend as was found to be the case here. In this case the Tribunal set out that Mr Orwin’s email signature “was designed to provoke and, we think given the claimant’s acceptance of possible offence, was designed to offend.”
Like other cases in this area, this case also serves as a reminder of the importance of having clear DEI policies and guidance.