The difficulties of balancing the protected philosophical beliefs in gender criticality (that someone’s sex is biological and immutable) and gender fluidity (that sex and gender are in effect the same, and that people are the gender they say they are, regardless of biology) in the workplace has been highlighted in the recent employment tribunal decision of Fahmy v Arts Council England.
Arts Council England found guilty of harassment of employee related to protected ‘gender critical’ belief
The Case
The claimant was employed by the respondent as its Relationship Manager. Controversy arose within the respondent’s organisation after funding was awarded to a charity (LGB Alliance) which held gender critical views. Funding was suspended. A drop-in session was held at which employees were able to discuss the decision. The claimant raised gender critical views in this session.
Following the session a petition was circulated on behalf of the respondent’s LGBTQIA+ working group requesting support for a grievance relating to how the LGB Alliance funding issue had been handled in the drop-in session. The accompanying email specifically mentioned management with ‘homophobic/anti trans’ views. It was accepted by the tribunal that this referred to the claimant (although not by name). Other employees publicly commented on the petition and referred to, amongst other things, ‘discriminatory transphobic staff’ and referred to gender critical views as being a ‘cancer [which] needs to be removed from our organisation’.
Following the session a petition was circulated on behalf of the respondent’s LGBTQIA+ working group requesting support for a grievance relating to how the LGB Alliance funding issue had been handled in the drop-in session. The accompanying email specifically mentioned management with ‘homophobic/anti trans’ views. It was accepted by the tribunal that this referred to the claimant (although not by name). Other employees publicly commented on the petition and referred to, amongst other things, ‘discriminatory transphobic staff’ and referred to gender critical views as being a ‘cancer [which] needs to be removed from our organisation’.
The Decision
The tribunal held that the creation of the petition and the comments which accompanied it amounted to unwanted conduct related to the claimant’s protected philosophical belief in gender criticality and which had the purpose and effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. The claimant’s claim for harassment succeeded. A remedy hearing is awaited.
What Can We Learn?
This case is a reminder of the delicate balance which employers must reach when dealing with both sides in this controversial debate. Each belief has equal protection in the eyes of the law and employers should work to prevent clashes arising by providing clear training on appropriate behaviour.
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The learning team at Vista provide bespoke training in how to navigate the deep waters of the expressions of religious and philosophical beliefs.
This particular protected characteristic covers many beliefs, and can clash with other protected characteristics, such as sexual identity. We explore the kind of beliefs that employees could give expression to, the situations in which these expressions occur, and the intolerance from those who feel anything from intimidated to intolerant of these views.
This particular protected characteristic covers many beliefs, and can clash with other protected characteristics, such as sexual identity. We explore the kind of beliefs that employees could give expression to, the situations in which these expressions occur, and the intolerance from those who feel anything from intimidated to intolerant of these views.