Sometimes judgments are like buses - nothing for a while then two come at once! Hot on the heels of the Dr Markereth and DWP case (see my blog from yesterday) the employment tribunal published today their judgment in Maya Forstater's discrimination claim against her previous employer, the think tank Centre for Global Development (CGD).

The case in a nutshell...
Ms Forstater was a visiting fellow with the CGD. She holds gender-critical beliefs i.e. sex is immutable and cannot be changed, and engaged in debates on social media about gender identity and her opposition to changes to the Gender Recognition Act. Some of her colleagues complained that her comments were transphobic and her contract with CGD was not renewed. In response, Ms Forstater bought several claims for discrimination. She claimed her gender-critical beliefs constituted a belief and hence she was protected from discrimination under the Equality Act 2010. At the initial tribunal hearing, she failed at the first hurdle. The tribunal did not accept her gender-critical beliefs qualified for protection as they were not worthy of respect in a democratic society. However, and importantly for the direction of travel on the wider issue of protection for beliefs, the Employment Appeal Tribunal on appeal held that all but the most extreme beliefs 'were worthy of respect in a democratic society'. They noted that freedom of belief included the freedom to believe things that others might find shocking or offensive. With this victory under her belt, Ms Forstater returned to the tribunal for them to rule as to whether, now protected by the Equality Act 2010 against discrimination, the failure to renew her contract was discrimination.

Today's ruling
In the decision published today, the tribunal ruled that Ms Forstater was discriminated against when CGD did not renew her contract and that she had been victimised in respect of the removal of her details from CGD's website. Various other claims related to victimisation, harassment and indirect discrimination were not successful.  

Where does that leave us?

  • Both Dr Mackereth's and Ms Forstater's cases are sufficiently different in detail so that the contrasting conclusions of the courts as to whether discrimination took place is not too surprising. Both however, have affirmed that a belief can be considered offensive and shocking but provided not 'extreme' it is still protected under the Equality Act 2010. Whilst the belief might be protected, that is not a carte blanche for any employee with such unpopular beliefs to be sharing them within the workplace in an aggressive manner. A strongly held belief will not negate any anti-bullying policy or dignity at work guidelines that might be in place
  • Aside from the discrimination angle, what Ms Forstater's case brings into play is the contents of employees' social media accounts and opens up that can of worms; is it any of an employer's business what an employee posts on a private social media platform? 
  • The comprehensive answer to that would blow my word count on this particular social media platform so I will provide the following pointers;
    • a private social media platform that does not link the owner to their place of work is not relevant to their employer (unless of course there is some sort of criminal activity)
    • there may be an exception when views held and expressed on social media are diametrically opposed to the purpose of the organisation and the role of the employee e.g. an employee at an LGBTQ centre posting homophobic opinions
    • organisations should have a clear and robust social media policy confirming that private accounts should either not mention the organisation or make it clear that any views held are not those of the organisation
    • any social media searches which form part of a recruitment process should be carefully thought out and strict boundaries and guidelines set prior to the search to ensure any actions taken following the search are not discriminatory 

If you would like any further advice or information on this issue or like to purchase a social media policy please do contact the employment and pensions team at employmentandpensions@anthonycollins.com