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1st July 2021

“I do not agree with what you have to say, But I defend your right to say it.”

CGD Europe, a subsidiary of the Centre for Global Development decided not to renew Maya Forstater’s visiting fellow contract and offered no further consultancy work, following an investigation into a series of tweets that expressed her views on gender.  In 2019 she lodged a discrimination claim which the ET dismissed, finding that her comments were “absolutist” and “not worthy of respect in a democratic society” therefore, they were not protected as a philosophical belief under section 10 of the Equality Act.  

The EAT disagreed, finding that the law was applied erroneously, and evaluation of her beliefs was irrelevant.  They also recorded obiter that to fail to be protected under the Act, views would need to be akin to Nazism or totalitarianism and that her comments weren’t of this nature and scale.

Technically, the measure of a philosophical belief is five-fold; The belief must be genuinely held; be a belief, not an opinion; be a belief as to a weighty and substantial aspect of human life; attain a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society.  Employers should also notice that the concept of “belief” extends beyond religious grounds.  Significant world events and political issues around such matters as climate change, Brexit, Covid or Black Lives Matter are evoking strong individual stances; these views can then be aired easily through forums and social media for anyone to see and hear.

Forstater used Twitter to challenge Government proposals to permit people to self-identify as another gender; she believes that biological sex cannot be changed, (however, gender can) based on the observation that gender is a social construct.  She was outspoken about her belief that men are men and women are women, but faced quite the backlash, particularly from the trans-movement.  The belief spiralled into debate and argument, which potentially influenced the ET in the first instance; reference was made in the judgment to the content of the belief, in that Forstater was not entitled to ignore the legal rights of a transitioned person and/or to ignore the pain that can be caused by misgendering a person.  The EAT said that straying into an evaluation of the belief could be deemed a failure to remain neutral in proceedings.  Interestingly, the EAT set out in the judgment Why the belief (although offensive and abhorrent to some), did not seek to destroy the rights of trans-persons.  This seems to directly contravene the ruling that the evaluation of the belief is irrelevant.

Surely there has to be some examination of the evidence to assess what is or is not worthy of respect in a democratic society as set out in the last leg of the philosophical belief test?

Herein lies the problem; today’s issues certainly polarise opinion, are more complex and the status quo is challenged, more often.  A person certainly shouldn’t fear speaking out for the risk of being censored, bullied, harassed or cancelled by their employers or others.  This case could be said to demonstrate the offended employer becoming the offending employment tribunal, to the detriment of proper application of the law.  The EAT finding in Forstater’s favour, ought to be observed by employers and noted that social media content is not clear cut and that employees have a fundamental right to air their philosophical beliefs, as protected by the framework of the Equality Act, even if the content may conflict with alternative views held.

Certainly, a well thought out social media policy with clear guidelines to employees may be helpful here in explaining what is and isn’t acceptable, and protect the company from any direct issues or public relations disasters.  The world is watching, therefore education and discussion for colleagues around these points (or even this case law) would be valuable to raise awareness among teams.  Has an employee posted the content that is worrying to you and you are unsure what actions to take?  Lighthouse is here to help, so please call 0300 303 5228 to discuss any points raised or receive general support for your HR team.

 

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