Balancing freedom of expression and freedom from discrimination in the workplace
Employment Solicitor Chris Dobbs looks at the case of Forstater v CDG Europe, providing advice for employers on balancing freedom of expression and freedom from discrimination in the workplace.
What constitutes a protected philosophical belief?
Maya Forstater last made the headlines in December 2019 when an Employment Judge ruled against her claims for discrimination on the basis of a protected belief, after she made what her employer considered to be a transphobic Social Media post.
Specifically, Ms Forstater expressed the view that trans women holding Gender Recognition Certificates could not describe themselves as women and claimed she was dismissed for holding this belief.
In a 26 page judgment, EJ Tayler ruled that Ms Forstater’s ‘absolutist’ views on gender identity were not worthy of respect in a democratic society and that her view that ‘sex is a material reality […and an…] immutable fact” infringed too heavily on the rights of others; namely non-binary and transgender individuals.
How to strike a balance between free speech and freedom from discrimination
Having lost at the Tribunal, Ms Forstater appealed the judgment and the case was heard at the Employment Appeal Tribunal in the last week of April this year.
Ben Cooper QC, representing Ms Forstater in the Tribunal, described the original approach as “Orwellian” and directly quoted Orwell’s famous dystopian novel 1984 in his submissions.
Somewhat amusingly in response, Jane Russell acting for the company cited the Animal Farm mantra of ‘Four legs good, two legs bad’ as an example of an absolutist view which runs the risk of placing those with a protected characteristic at a substantial detriment.
A written judgment is unlikely to be available for several months.
What is considered transgender discrimination?
The social issues with the case go beyond the relatively simple matters of discrimination and Equality Act claims. What this case is ultimately about is the definition of free speech and the extent to which freedom of belief can be restricted where the expression or manifestation of that belief impacts upon others.
The recent case of Taylor v Jaguar Land Rover highlighted the need for trans individuals, regardless of gender identity, to be granted protection in law under the Equality Act.
It is clearly right that trans individuals are entitled to protection in law from discrimination and the challenge for the courts is now going to be the point at which a religious or philosophical belief to the contrary can be deemed ‘worthy of respect’ and therefore protection itself.
I discuss the case of Taylor v Jaguar Land Rover further in this article.
Trans rights in the workplace: Advice for employers
This creates a dilemma for employers who may be facing the conflicting positions of a trans individual expressing their gender identity on the one hand and someone with a strong philosophical or religious objection to that on the other.
There is no clear answer to this situation as much will depend on the facts and the specific circumstances. In general, everyone is free to hold whatever belief they wish.
It will be the manifestation of that belief which creates workplace issues as this carries the most obvious risk of harassment. Unfortunately for employers, attempting to prevent someone airing their views places them at the risk of a claim for discrimination on the basis of belief.
Freedom of speech vs discrimination
Unless and until a case is heard to the contrary, the general rule of thumb seems to be that an individual is free to hold a belief and even to express it providing that doing so does not infringe on the rights of another person.
This position is clearly unsatisfactory as it requires not only judges but also employers to undertake a balancing exercise of the two rights.
I discussed a similar case where an individual was dismissed for the expression of their views against same-sex adoption. You can read that here.
An employment solicitor’s view
Chris Dobbs says "Cases such as these create an almost impossible position for employers who will find themselves faced with two conflicting rights.
As a rule of thumb, employers should take the position that while an individual is free to hold and potentially even express their own views, this should not be at the expense of the legal rights of another person.
That was the main objection the original judge had in the Forstater case; that Ms Forstater would categorically deny a trans-individual with a GRC their legally recognised sex.
But every case will be individual and separate. A philosophical belief is not always one which triggers protection from discrimination and, likewise, an individual’s philosophical, religious or political views may not always amount to harassment.
This potential minefield is one of those areas where early, open intervention may well serve better than kneejerk disciplinary action."
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