Hot on the heels of the recent cases of Mackereth and Forstater (see our blogs here and here), a third 'high-profile' case hit the headlines recently when Alison Bailey, a barrister, took on her chambers, Green Court Chambers (GCC) and Stonewall in a row about her gender-critical beliefs.

What happened? 

Ms Bailey holds gender-critical views and founded the LGB Alliance. The group opposes gender theory (i.e. that a person is defined by their gender identity rather than their biological sex) and claims to protect the interests of lesbian, gay and bisexual individuals. She promoted this on Twitter, which resulted in a 'Twitter storm' of strong opposition, and a complaint to GCC by Stonewall.

In response, GCC posted on their Twitter feed and website that they were investigating Ms Bailey. They later upheld the complaint against her by Stonewall.

Ms Bailey brought a claim for discrimination and victimisation, claiming that GCC’s actions in announcing the investigation so publicly had disadvantaged her, and were as a result of her beliefs.

GCC argued that their actions were not in response to Ms Bailey’s views, but rather their attempt 'damp down the Twitter storm' and limit the damage to their reputation.

What was the tribunal’s decision? 

It has already been established through the cases of Mackareth and Forstater that gender-critical views are capable of being protected under the Equality Act 2010 as a 'belief worthy of respect in a democratic society'.

The key question in Ms Bailey’s case was whether GCC had taken the actions they did because of her beliefs, or because of the way she manifested her beliefs.  

The Tribunal held that GCC’s actions had been in response to the beliefs themselves and as such Ms Bailey had suffered direct discrimination. However, although her income had fallen, the tribunal ruled she did not sufficiently demonstrate that this was a result of her gender-critical views. 

Take away points

• Lots of preventative work can be done to educate staff, address workplace behaviours and ensure that your organisation’s culture is one where staff are mindful and respectful of each other, even if they do not agree with each other’s views. Clashes between staff members will need to be dealt with on a case-by-case basis, as there is not a 'one size fits all' approach here.
• Employers must keep all details of any investigation/disciplinary/grievance matter confidential. Employers should not publicly announce these details on Twitter, for a start. Other staff in the organisation should not be aware of any such matters, unless they are involved, let alone the public. An employee would probably have grounds for constructive dismissal if their employer chose to disseminate that sort of information so publicly.  
• Gender critical beliefs are now firmly protected under the Equality Act 2010 – although as we have learnt from Dr Mackereth’s case that does not sanction all behaviours carried out under the banner of that belief.
• If an employer is considering taking any action in response to an employee’s controversial views, they need to really drill down into why they need to take the proposed action. In this case, GCC argued that they were trying to dampen a Twitter storm. However, the tribunal held that this could not be disassociated from Ms Bailey’s beliefs. Therefore, GCC did treat her in the way they did because of her beliefs.
• An employer cannot restrict the views and beliefs of employees (unless those beliefs constitute a criminal offence in which case they may lead to dismissal). However, they can ensure through a comprehensive social media policy that employees’ social media accounts are not linked to their employer and that posts are not published which in any way purport to be the view of an employer. That said, if views which are publicly held on social media (even if not purporting to be the view of their employer) impede the employee’s ability to carry out their role, this may be a disciplinary or capability matter.* Do check that your social medial policy is up to date and robust. 

If you would like any advice on the above or renewed equality, diversity and inclusion training, please do contact any member of our team and do look out for details of our employment law update on 18 October when we will be looking at these cases and the implications for employers in more detail. 

*This is the issue to be decided by the Employment Appeals Tribunal in the case of Higgs v Farmor’s School.  Ms Higgs was dismissed for raising her views on transgender issues and sex education in schools. The school argued that holding these views was incompatible with her role as a pastoral assistant. We will report on this case once the employment appeal tribunal judgment is published.