Forstater – important implications for the workplace, including managing conflicting rights

In this post we reflect on some of the very real and practical challenges that face employers when striving for a diverse and inclusive workforce, while protecting individual religious or philosophical beliefs.

The key elements of the Forstater case

You may already be familiar with the recent case of Forstater v CGD Europe and others.   This first hit the headlines in 2021 when the Employment Appeal Tribunal (EAT) decided that gender critical beliefs are protected as a ‘philosophical belief’ under the Equality Act (one of the ‘protected characteristics’ that can trigger unlawful discrimination). Ms Forstater believed that a person’s sex is an immutable biological fact. She believed that, while a person can identify as another sex and ask other people to go along with that, and can change their legal sex under the Gender Recognition Act, this does not change their actual sex. She engaged in debate on this issue, making remarks which some others found offensive – this took place on social media and also in the office.

The EAT held that her beliefs were protected, observing that:

“…beliefs may well be profoundly offensive and even distressing to others, but they are beliefs that are and must be tolerated in a pluralist society”.

The focus of the case then shifted to whether CGD’s actions (including its failure to renew her fellowship) were 1) because of her gender critical beliefs or 2) because of the way she manifested those protected views. In legal terms, there is a distinction between the two. This had to be considered in the context of the Human Rights Act (which includes, for example, freedom of thought, of expression, of conscience and religion, and freedom to manifest beliefs in practice).

These questions were put back to an Employment Tribunal to consider and its decision was published last month (July). The tribunal considered whether the way in which Ms Forstater expressed her views (i.e. not the views themselves) had ‘crossed the line’ to be ‘objectively offensive’, ‘objectively unreasonable’ or ‘objectively inappropriate’. The Tribunal decided that whilst it was clear that some individuals might be offended by some of Ms Forstater’s statements, she was simply making straightforward statements of her gender critical belief. The tribunal considered that if these statements as manifestations of her belief were objectively unreasonable, this meant that the belief itself was not worthy of protection – but the EAT has already ruled that gender critical beliefs are worthy of protection. It was held that Ms Forstater’s actions were not objectively offensive or unreasonable.

Ms Forstater had the legal right to hold and express her views and not to suffer a detriment for doing so. She therefore succeeded in her claim for direct discrimination and victimisation.

The facts of this case suggest that the Tribunal had set quite a high threshold for when the manifestation of someone’s philosophical belief ‘crosses the line’ to being reasonably objectionable. Ms Forstater had made high-profile campaigning comments and posts, and was openly critical of opposing views. The Tribunal observed that mockery or satire (to a certain level) is part of the ‘common currency of debate’ and did not automatically make it objectively unreasonable.

Practical implications

The first and most compelling implication for organisations is that if they have directly or indirectly silenced the voicing of gender critical views (through concern of it being provocative and offensive to others) it would be wise to revisit those decisions and ensure they are still justifiable.

We’re already aware that the Forstater case is leading to more contentious open debates in the workplace about gender identity issues. The issue is also continuing to be headline news, with the decision of Allison Bailey v 1) Stonewall and 2) Garden Court Chambers following shortly after Forstater.   We’re now in the position where both gender reassignment and gender critical beliefs (a ‘philosophical belief’) are protected characteristics under the Equality Act. Employers are faced with the difficult challenge of having to engage with and manage conflicting beliefs and opinions.

Navigating the scenario of conflicting protected beliefs               

The first and most important step for an employer (and those representing it) is not to take sides in the argument. Listen, understand and then consider the real impact for the business, whilst at the same time protecting all employee rights.

One workplace scenario is that a person holds a protected belief and makes comments about that belief – a colleague hearing those opinions, who holds conflicting beliefs, may feel offended and complain that they are suffering harassment as a result of discrimination against their different belief. Harassment is unwanted conduct related to a protected characteristic (including religious or philosophical belief, sex or gender reassignment) that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

It’s likely that those with an opposing view will be able to show that those actions have had that effect on them personally. However, there’s second limb to the legal test for harassment linked to a protected characteristic – it will also need to be reasonable for the conduct to have had that effect. If Employment Tribunals are concluding that openly stating opinions and entering into online debates, even bringing those discussions into the workplace, are not objectively offensive, unreasonable or inappropriate actions, will it be unreasonable for a colleague to feel offended by those actions?

A tricky balancing exercise for employers

Employers will need to carry out some tricky balancing acts where their workers have strongly held contrary views – the challenge is to create a workplace environment where those opinions might be expressed in a way that protects the freedom of expression of those holding one protected belief, while ensuring that the opinions and related discussion doesn’t, when judged reasonably, amount to harassment for others.

It may be tempting to decide that all beliefs and opinions that could cause offence should simply not be discussed or referred to in the workplace, but that’s too simple in itself, doesn’t reflect the direction of modern more open workplace cultures and risks breaching the right to freedom of expression. It’s important to consider carefully whether the way the beliefs are expressed (as opposed to the belief itself) is objectively offensive, unreasonable or inappropriate. If so, perhaps deal directly with those actions and where they overstep the mark.

If the actions are objectively okay, then it’s going to be a case of supporting those who are offended and considering whether it is reasonable for them to feel that their dignity has been violated or that an unacceptable environment has been created.

We can see that this may lead to some challenging conversations for organisations, but we urge employers to think about this now, rather than wait for an issue to rear its head. Start by creating the environment where equality and diversity is openly discussed and explored, where conflicting views and opinions can be tolerated, without offence being caused.

Creating a culture of tolerance

The message from the Forstater decision seems to be to be about creating a culture of tolerance – accepting that we won’t always agree with others but other views are protected too, so those holding those views are entitled to express them. This may have wider benefits too if it helps diversity and inclusion more generally become a reality in the workplace.

The Forstater case has not created an unlimited right to express opinions that may offend others, but has challenged employers to think carefully about how they manage conflicting views in a ‘tolerant and pluralist society’.

Applying these principles more widely

Views in relation to trans issues are receiving high levels of publicity at the moment, so they’ll be on the radar of many employers. However, these principles apply to many and varied religious and philosophical beliefs.

For a belief to be protected under the Equality Act it must be weighty and substantial, attain a sufficient level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, not be incompatible with human dignity or conflict with the fundamental rights of others.

What might constitute a protected belief might also change with time, as society changes. Would an ‘anti-vax’ belief towards the Covid vaccination qualify? The prevailing view in the legal community during the height of the pandemic was probably not – but maybe now?

So, we encourage employers to take a carefully considered approach to beliefs and opinions that may be causing friction in the workplace – they may be legally protected under the Equality Act and need careful navigation.

Our comment

In an open and free society, difficult debates will always occur. These cases remind organisations that they need to be open to conflicting views, whatever the commercial implications may appear to be. These scenarios won’t be easy, but there will be a way to navigate them – pause, plan a sensitive approach and ensure that you’re clear on the relevant legal principles.