The decision of the Employment Tribunal (ET) in the case of Fahmy v Arts Council England gives further guidance on the matter, although the decision is not binding on the Employment Appeal Tribunal.
Section 26 of the Equality Act provides that a person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B and in deciding whether conduct has the effect referred to in this paragraph, each of the following must be considered: -
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
Protected characteristics extend to philosophical belief and the Employment Appeal Tribunal in the case of Grainger plc v Nicholson decided that the criteria for such a belief is that it must be a genuinely held belief, not an opinion or viewpoint, with some weight to it that substantially affects human life and behaviour, thus having a level of cogency, seriousness and importance worthy of respect in a democratic society and not in conflict with the fundamental rights of others.
It must be noted that direct discrimination cannot be justified unless permitted by legislation and with indirect discrimination, the employer can only justify their conduct if the rule or policy giving rise to the dispute is to achieve a legitimate and proportionate objective aim. Otherwise, employers could be subject to substantial damages claim.
What were the facts of Fahmy v Arts Council England?
Denise Fahmy (F),a long standing employee of Arts Council England (AEC) had gender critical beliefs such as sex is real and important, immutable and should not be conflated with gender identity ie what sex a person feels they are or would prefer to be and she did not believe that trans women were women, i.e. men who think they are women and that trans men were men, i.e. women who think they are men.
(ACE) had arranged an internal meeting of over 400 of their employees via teams to discuss a grant that had been awarded to LGB Alliance (lesbian, gay and bisexual) by The London Community Foundation, who were a branch of (ACE).
LGB Alliance had a history of anti -trans activity and thus (ACE)’s deputy chief executive expressed a view that it was a mistake for the grant to have been awarded and (F) defended the LGB Alliance, in particular saying that they were not anti-trans. The meeting was quite hostile and toxic with some staff comments being against gender critical beliefs and (F)’s comments did not go down well with a particular member of staff who had attended the meeting, who after the meeting circulated an email to staff with a petition attached. The email making negative comments against those who had gender critical beliefs. Upon discovering this, (F) resigned and made a complaint to Employment Tribunal for harassment and victimisation due to her gender-critical beliefs in the workplace.
What did the Employment Tribunal decide?
Although (F)’s claim for victimisation failed, but the Employment Tribunal decided that the circulation of the email with the comments made by the employee amounted to unwanted conduct thus harassment in circumstances where (ACE) were aware that the circulation of the email arose from contentious issues and that (ACE) had known there was a need to update policies and train staff on such matters but had not taken all reasonable steps to address matters thus were liable for their employee circulating an inappropriate email that harassed (F) because of her philosophical belief.
What should employers to avoid a similar situation arising within their workplace?
Employers should review and update their policy on discrimination matters and if they have no such policy, consider drafting one via HR support and ensuring that all staff and managers have read and understood the policy, which should be kept under regular review.
The article is for informational and educational purposes only and should not be relied upon as legal advice. If you require any further assistance, please do not hesitate to contact our free advice line team at 0116 274 9193.
