As the public debate over trans rights has become increasingly polarised, the conflict between trans rights and "gender-critical" views also continues to generate a stream of Employment Tribunal cases.
We recently hosted a panel event looking at how employers can navigate these issues in practice, and had the privilege of hearing from Carol Davis KC of Littleton Chambers on the legal framework, as well as Emma Cusdin of Global Butterflies and Adam Tobias of Inventum Consulting. We discussed two recent cases which give guidance on how employers can manage conflicting views.
Fahmy v Arts Council England
This case arose from the Arts Council's decision to withdraw funding for a grant made to the LGB Alliance. At a Teams meeting with over 400 people in attendance, the Claimant's manager discussed withdrawal of grant to the LGB Alliance and criticised the organisation for its stance on trans issues. The Claimant was the only attendee who defended the LGB Alliance at the meeting and asked what protection the Arts Council gave to gender-critical views. Subsequently, one of her colleagues created a petition sent to all staff, proposing to raise a grievance relating to the original grant to the LGB Alliance, with a spreadsheet to which staff could add comments. The comments inserted included the following:
“It is clear that there are members of our own organisation who are happy to be vocally anti-trans and gender critical...Much like how our recent antiracism training has illustrated there is an ongoing problem with racism in our ranks that needs to be challenged, this cancer needs to be removed from our organisation"
"openly discriminatory transphobic staff”
The Claimant raised a complaint under the organisation's Dignity at Work process, which was partially upheld. The employee who instigated the petition resigned before disciplinary proceedings concluded. However, despite these remedial actions, the Employment Tribunal held that the petition was harassment (on the basis of the Claimant's protected belief) for which the employer was liable. The employer's "reasonable steps" defence failed, partly because its policies were out of date and incomplete (the Dignity at Work policy did not refer to discrimination on the basis of belief) and it had identified a need for training on trans issues and gender-critical views, but had not implemented this.
There are two key lessons for employers. First, comments which might be robust but permissible self-expression on social media can amount to harassment in the workplace. Context and intent are both important. Second, it's essential for employers to provide up-to-date training on diversity and inclusion issues, and have policies which reflect the wide scope of anti-discrimination law. Failing to take these preventative steps could result in an employer being held liable even if it has taken action following acts of harassment or discrimination.
Higgs v Farmor's School
This case concerned a teacher who was dismissed over Facebook posts which criticised sex and relationships education in schools, particularly teaching of same-sex marriage and gender identity. The school dismissed her after receiving complaints. Although the Employment Tribunal rejected her claim, the Employment Appeal Tribunal has now allowed her appeal and her case will be re-heard.
In the meantime, the EAT's judgment gives useful guidance for employers concerned about an employee's social media activity. It highlights the fundamental importance of freedom of expression, even where a view is unpopular or controversial, but explains that this right is not unlimited. In any case where an employee's posts relate to a protected belief under the Equality Act, employers will need to balance the employee's rights against the rights of others (including customers and other staff) and business needs, in order to assess whether any disciplinary action (including dismissal) is objectively justified and proportionate.
Employers should consider:
- the tone and content of the posts, and how many/ frequent they are
- who the employee would expect to see the posts
- to what extent the posts intrude on others' rights and whether this affects the employer's ability to run its business
- if the views are clearly expressed to be personal or might be attributed to the employer
- whether there is a power imbalance between the employee and those whose rights are affected
- the nature of the business, e.g. whether vulnerable clients may be affected
- whether there is a less restrictive option which would achieve the employer's objective.
As ever, prevention is better than cure. Our panel highlighted the role employers can play in educating staff about how social media posts can take on a life of their own, as well as giving clear guidance about what is and isn't tolerated. Clear policies and regular, meaningful, up-to-date training are essential to mitigate the legal and reputational risks.
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