I don't think it's too simplistic to say that the Equality Act 2010 ("EqA") provides vital protection against discrimination in our workplaces and society. But dig down a little deeper and things get much less simple; what to do when rights under the EqA complete? Which right comes out on top?
This was at the heart of a recent Employment Appeal Tribunal (EAT) case.
A think tank did not renew a visiting fellow's contract, following her tweeting about her opposition to proposed changes to the Gender Recognition Act. In these tweets which were made outside of work, the visiting fellow Ms Forstater, stated her belief that an individual's sex is fixed and should not be combined with gender or gender identity. She brought a discrimination claim against the think tank; she argued that her belief was a philosophical belief and so she was protected under the EqA.
Conversely, the think tank deemed her views "offensive and exclusionary". The tribunal held that Ms Forstater's beliefs did not deserve the protection of the EqA as they did not meet the necessary definition of a philosophical belief. They were "incompatible with human dignity and the fundamental rights of others".
The EAT, however, disagreed. It stated that Ms Forstater's beliefs were protected as they were shared by others and were "statements of neutral fact", and hence were NOT incompatible with human dignity and the rights of others. The judge also noted, as an aside from the judgment, that opinions opposing same-sex marriage may likewise warrant protection under the EqA and were not necessarily incompatible with human dignity.
The issue of whether Ms Forstater was discriminated against is still to be determined - this preliminary hearing was just to decide whether her views were worthy of protection under the EqA.
Knowing that even our tribunals and courts are struggling with these competing rights might provide some comfort to employers or conversely may leave them feeling hopeless; if the lawyers can't interpret the law consistently then what hope do we have!
Once again, we see the law as a very blunt instrument to apply to a sensitive issue. Prescriptive rules will only go so far, a culture of respect and understanding within workplaces is key. The goal has got to be creating an environment where employees feel they can express their views but in a respectful manner.
Below are some key steps to creating that;
- have you set the expectations of your workplace culture in all you say and send to employees?
- are there safe spaces where employees can question, discuss and express disagreement with the culture?
- is your inclusivity and diversity training regular and dynamic - the same training will not continue to apply and be helpful year in year out.
"The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection within s.10, EqA."