Gender critical beliefs and the importance of proportionality

Since writing on the manifestation of gender critical beliefs in the workplace in 2022, there has been a proliferation of case law in this area. Employers are increasingly grappling with tensions between employees stemming from their conflicting beliefs.  

The recent Court of Appeal (CoA) judgement in Kristie Higgs v Farmor’s School is one example of an employer falling foul of the law when attempting to strike a balance between creating a respectful and inclusive workplace whilst protecting an employees’ right to hold and convey their beliefs without discrimination.

Brief facts of the case

At the time of publication of our previous article, Ms Higgs was waiting for her appeal at the Employment Appeal Tribunal (EAT) to be heard, after the tribunal (ET) dismissed her claims for direct discrimination and harassment on the grounds of her religious and/or philosophical beliefs. Ms Higgs brought these claims after she was dismissed by Farmor’s School for Facebook posts which focused on her disapproval of the teachings of gender fluidity. Whilst it was accepted that her beliefs were protected, the ET had concluded that her beliefs were not the reason fo her dismissal and therefore no discrimination or harassment had taken place. Instead, the ET concluded she was dismissed because of the way she had manifested her beliefs. The School was concerned that someone reading her posts might conclude she is hostile to the LGBTQ+ community, which could impact the School’s reputation in the future.

Ms Higgs appealed to the EAT, arguing that the ET failed to properly consider whether her Facebook posts were a manifestation of her protected beliefs and whether the School’s decision to dismiss her for those posts was justified. The EAT upheld her appeal, finding that the ET erred in failing to properly consider the link between her Facebook posts and her protected religious beliefs, and subsequently failed to carry out a proportionality assessment of the School’s actions against Ms Higgs’ right to the freedom of expression. The case was remitted back to the ET but both parties appealed this outcome.

The CoA found the EAT should not have remitted the case back to the ET and should have concluded that Ms Higg’s dismissal constituted unlawful discrimination on the grounds of religion or belief. The CoA agreed with the EAT that if a dismissal is motivated by an objectionable or inappropriate manifestation of a religion or belief then such dismissal will only be lawful if the employer can show it was a proportionate response. In this case, it was found that neither the language in Ms Higg’s Facebook posts nor the potential risk of future reputational damage to the School were capable of justifying Ms Higg’s dismissal, especially as there was no evidence Ms Higgs had displayed any discriminatory attitudes in her treatment of school children. This meant the School’s actions were disproportionate in the circumstances, particularly as they omitted to consider alternatives to dismissal.

Manifestation and proportionality of response

A key principle established in recent years is that, while an employer may find an employee’s belief objectionable, inappropriate or misaligned with their business culture, this does not negate the employee’s right to hold such a belief. Employers must instead focus on how an employee manifests their belief and carefully consider how to respond in the most proportionate manner. 

For example, in Orwin v East Riding of Yorkshire Council, the Council invited staff to add their preferred pronouns to their email signature voluntarily. Mr Orwin, disagreeing due to his gender critical beliefs, added “XYchromosomeGuy/AdultHumanMale” to his signature in protest. Despite multiple requests by management to remove it, and an offer of a meeting to come to a mutual agreement, Mr Orwin refused, leading to his dismissal and subsequent claims of discrimination and unfair dismissal. The ET found that whilst his gender critical beliefs could qualify for protection under the Equality Act 2010, his email signature had been deliberately provocative and sought to mock individuals who self-identify their gender, which was considered an inappropriate manifestation of his beliefs. The Council’s decision to dismiss Mr Orwin was considered proportionate as the Council had tried to discuss the situation to reach a mutual agreement but Mr Orwin did not engage. The ET therefore dismissed his claims.

In contrast, in Ngole v Touchstone Leeds, it was found a charity discriminated against a job applicant based on his religion and belief. Touchstone, which serves various communities including the LGBTQ+ community, withdrew Mr Ngole’s job offer as a mental health support worker after it discovered he had posted derogatory comments on Facebook about LGBTQ+ people. Mr Ngole challenged this and so Touchstone invited him to a second interview to discuss his suitability for the role. Touchstone was not satisfied with his responses and decided not to reinstate the offer. As a result, Mr Ngole claimed direct discrimination on the basis of religion and belief, as he is a Christian.

The tribunal had to balance Mr Ngole’s right not to be discriminated against due to his religion and belief against Touchstone’s objective of safeguarding vulnerable individuals using their service. Whilst the tribunal considered Touchstone’s objective was sufficiently important to justify limiting Mr Ngole’s right of freedom of expression, it found that withdrawing the job offer before the second interview was a disproportionate act, going beyond what was necessary to protect service users, and therefore this amounted to direct discrimination. However, the decision not to reinstate the job offer was not discriminatory as Touchstone had not received adequate assurances about Mr Ngole’s suitability for the role at the second interview.

It is therefore clear that the importance of proportionality cannot be emphasised enough when dealing with the complexities that arise from the clash of rights of employees in the workplace and that alternatives to dismissal should always be considered before any final decision is taken. 

Considerations for employers

As Forstater v CGD Europe and Others demonstrated, whilst gender critical beliefs may cause offence and be objectionable to certain individuals (particularly those with gender affirmative beliefs), such beliefs are capable of protection and must be tolerated in a pluralist society. Employers must therefore ensure they are prepared to deal with issues that can arise in the workplace as a result of conflicting beliefs. Steps that can be taken include:

• implementing clear policies on acceptable behaviour, discrimination and harassment, including expectations for behaviour outside the workplace
• providing training to ensure all employees and senior management understand their rights and responsibilities under the Equality Act 2010
• providing tailored support and resources (beyond simply signposting an employee assistance programme) for marginalised individuals who may be struggling with the current social climate
• where a dispute does arise and an investigation is required, avoiding knee-jerk reactions and ensuring the dispute is robustly dealt with in line with the business’s policies and procedures, including proper documentation of the issues. Taking time to properly assess the factual matrix of the situation in the context of the employee’s job role and considering whether it could genuinely cause reputational damage to the business will be key. As we saw in Higgs, neither the language Ms Higgs used on Facebook, nor the risk of possible future reputational damage were capable of justifying her dismissal
• where it is considered that an individual’s behaviour is objectionable, ensuring proportionality is considered when determining how to respond and considering if there are less draconian measures that could be taken other than dismissal. It will always be necessary to ask (i) if the employer’s objective is sufficiently important to justify limiting the right to freedom of expression (ii) whether the limitation is rationally connected to that objective (iii) whether a less intrusive limitation could achieve the objective and (iv) whether the limitation’s severity on the worker’s rights is outweighed by the objective’s importance. In answering those questions, employers should consider the content, tone, audience and impact on the rights of others of the individual’s manifestation, as well as the impact of it on business operations (particularly where vulnerable individuals are involved), reputational risks, power imbalances, and whether the limitation proposed is the least intrusive means

In an increasingly charged political landscape, this is evidentially an issue which will be the subject of further litigation, and which employers must stay attuned to. Employers should carefully consider the above guidance and recognise that, when dealing with conflicting beliefs, proportionality is crucial and there is no one size fits all approach as each case will turn on its own facts.