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Work matters monthly employment update - Forstater vs CGD Europe

SUMMARY In this bulletin we look at the recent case of Forstater v CGD Europe which considered the question of what can amount to a “philosophical belief” which is protected under...

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Date: 30/06/2021

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Mike Tremeer

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Taj Rehal

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SUMMARY

In this bulletin we look at the recent case of Forstater v CGD Europe which considered the question of what can amount to a “philosophical belief” which is protected under the Equality Act 2010.

In general, to date the courts and tribunals have adopted a relatively wide definition of philosophical belief for this purpose and have granted protection to those committed to a number of causes such as climate change and ethical veganism.

The EAT decision in Forstater extends protection to the belief that biological sex is immutable and therefore cannot be changed and confirms again the potentially wide scope of the definition. However, the decision also demonstrates that the courts will be prepared to protect beliefs which may prove to be criticised or unpopular among large sections of society. The EAT also makes interesting comments about what its decision does not mean, including that it does not legitimise inappropriate ‘manifestation’ (i.e. expression) of the protected belief.

ANALYSIS

What does the law say?

To qualify for protection from discrimination and harassment under the Equality Act 2010, an employee must show that they have a ‘protected characteristic’ including holding a ‘philosophical belief’.

In its 2010 decision in Grainger plc v Nicholson the EAT set out the following five tests for whether a philosophical belief is protected. It must:

  • be genuinely held;
  • be a belief and not an opinion or viewpoint based on the present state of information available;
  • be a belief as to a weighty and substantial aspect of human life and behaviour;
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

These tests are included in the Equality and Human Rights Commission's Employment Statutory Code of Practice which courts and tribunals are obliged to take into account in any case they consider relevant.

What do the courts say?

As there is no specific definition of ‘philosophical belief’ in the Equality Act, the tribunals and courts have had to decide whether a wide range of beliefs are protected over the years. In general, they have adopted a fairly wide interpretation of what is capable of protection – for example, beliefs that lying is always wrong, in anti-fox hunting and in the “higher purpose” of public service broadcasting.

This wide interpretation has also covered a broad spectrum of beliefs that have become more prominent in society generally in recent times. In the Grainger decision itself, the EAT held that an employee's belief that mankind is heading towards catastrophic climate change and is obliged to mitigate this, was capable of protection.

Also, the more recent development of a vegan lifestyle being used as a means of animal protection helped an employee succeed in their claim in the 2020 case of Casamitjana Costa v The League Against Cruel Sports. The Tribunal decided the employee’s belief in ethical veganism met the Grainger tests because the employee had a real, cogent and genuine belief in veganism as a means to avoid killing and eating animals and for climate control; and adapted his lifestyle to this belief.

This trend of protecting a wide range of beliefs has been continued with the recent EAT decision of Forstater v CGD Europe, but also shows that courts are prepared to protect beliefs even when they are not consistent with those held by large sections of society. In particular, the decision confirms that the fifth Grainger test of being ‘worthy of respect in a democratic society, not incompatible with human dignity or the fundamental rights of others’ is not difficult to meet even if the view is offensive to others.

Forstater v CGD Europe

Ms Forstater worked as a consultant for the Center for Global Development (‘CGD’), during which time she posted tweets expressing gender critical views, i.e. that biological sex is immutable and cannot be changed.

Some of Ms Forstater’s colleagues at work complained that her remarks were offensive and “transphobic”. Following an investigation by CGD, Ms Forstater’s contract was not renewed. Ms Forstater brought a Tribunal claim for discrimination relying on her views amounting to a protected philosophical belief.

Tribunal decision

The Tribunal held that Ms Forstater’s belief was not protected as it failed the fifth Grainger test. This was because Ms Forstater referred to people by the sex she considered appropriate, even if it was offensive to them and this was incompatible with their rights and not worthy of respect in a democratic society.

Ms Forstater appealed (with the support of the Equality and Human Rights Commission).

EAT decision

The EAT upheld Ms Forstater’s appeal and found that her gender critical views were protected as a philosophical belief.

The EAT considered a belief would only be regarded as not worthy of respect if it would be an affront to the European Convention of Human Rights principles "akin to that of pursuing totalitarianism or advocating Nazism or espousing violence and hatred in the gravest of forms".

The EAT found Ms Forstater’s beliefs did not seek to destroy the rights of trans persons, even if they maybe offensive to some. Courts should remain neutral as between competing beliefs and "very few beliefs" will fail to satisfy the fifth EAT Grainger test.

However, the EAT was careful to point out that having a protected belief does not:

  • legitimise conduct which would otherwise count as discrimination or harassment; or
  • prevent employers from disciplining or dismissing, especially after warning, those who express or demonstrate their beliefs in ways which are inappropriate in their impact on the workplace.

Fladgate comment

This case extends a number of recent decisions in which courts and tribunals have granted protection to a wide range of philosophical beliefs. The EAT’s comment that "very few beliefs" will fail to satisfy the fifth EAT Grainger test means that, unless that decision is overturned by a higher court, the test is relatively easy to meet.

We therefore advise employers to be sensitive to all beliefs, even if offensive to large parts of the workforce, and assume they are protected – save in extreme cases. Employers should rather focus on whether there has been any discrimination or less favourable treatment, either by or against the employee.

In the case of Forstater, the next step is for the Tribunal to decide whether the CGD discriminated against Ms Forstater because of her philosophical belief. This will mean looking at the ‘manifestation’ of her belief, i.e. the way she expressed her gender critical views. If this was inappropriate, particularly if it amounts to harassment of a trans person, the non-renewal of the contract will likely be because of this act, rather than her protected belief.

The Supreme Court decision In Lee v Ashers Baking Co Ltd is interesting in this context as it involved the conflicting beliefs of a Christian bakery which believed that gay marriage is inconsistent with biblical teaching, and the protected sexual orientation of a customer. In this case the Court accepted the bakers should not be compelled to express a view contrary to their religious belief and bake a cake with the message “support gay marriage”. However, had the objection been to the customer rather than to the message, or active rather than passive, the balance of beliefs could have been very different.

In summary, employers often face a difficult balancing act when trying to respect employees' conflicting beliefs and that looks set to continue. However, remember that an offensive belief, or refusal to support a more popular view, should only merit formal disciplinary action if the manner in which that belief is expressed is unacceptable.

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