Belief discrimination: another page in the chapter of this litigious area

Continuing the trend in cases concerning gender critical beliefs, the employment tribunal has upheld Roz Adams’ claims of belief discrimination, harassment and constructive dismissal against Edinburgh Rape Crisis Centre.

The facts

Edinburgh Rape Crisis Centre provides support and counselling services to victims of sexual assault and rape. It was founded in 1978 as a service for and by women. At all material times, it has advertised its roles as for women only, relying on the occupational requirement exception in Schedule 9 to the Equality Act 2010.

The claimant was employed as a Counselling Support Worker. She has gender critical (or ‘sex realist’) beliefs, which the tribunal summarised as follows: ‘That biological sex is real, important, immutable and not to be conflated with gender identity.’

The claimant has a positive attitude to trans people and had worked well with trans individuals in the past. However, she felt there were issues with the way gender was dealt with at the respondent centre. In particular, she believed it was important for victims of sexual violence to be able to choose a counsellor on the basis of sex (rather than gender identity) and that the respondent should give clear answers to questions from service users on this topic.

In 2021, the respondent appointed Mridul Wadhwa as its Chief Executive Officer. This caused some controversy because Mridul Wadhwa is a trans woman who does not have a gender recognition certificate (ie, is biologically and legally male).

In March 2022, one of the claimant’s colleagues, AB, changed their name to one that sounded male. In June 2022, the claimant picked up an enquiry from a service user that read: ‘Is [AB] a man or a woman? Because as a woman I would feel very uncomfortable talking with a man.’

There had been discussion about how to respond to questions like this, but no management guidance. The claimant therefore emailed her manager and AB asking for advice and suggesting this response: ‘[AB] is a woman at birth who now identifies as non-binary.’

AB responded, describing the claimant’s email as ‘humiliating’. The CEO agreed and told AB they were looking into ‘HR mechanisms’ for dealing with the claimant.

On 29 June 2022, the claimant was invited to an investigation meeting about her email. The investigation was subsequently expanded to include other comments by the claimant about gender identity that were viewed as suspicious (one employee reported ‘a lot of what [she] says sounds innocent but feels wrong’). When the claimant asked for details about what she was alleged to have said, she was told ‘the allegations are about some comments you may have made on a couple of occasions’.

On 26 August 2022, the respondent recommended formal disciplinary action be taken against the claimant. A hearing was held on 14 October 2022 and on 6 February 2023 (the process having been paused to consider the claimant’s grievance) the claimant was sent the outcome, which upheld the allegations of misconduct.

The claimant appealed. The appeal was not upheld but the appeal panel did record that the claimant had not acted in breach of the respondent’s trans inclusion policy. The claimant wrote to the respondent asking for various assurances, including that management would be informed there was no finding of transphobia against her. The respondent refused, at which point the claimant resigned claiming constructive dismissal and discrimination.

The judgment

The 109-page judgment was a comprehensive victory for the claimant, with the tribunal finding in her favour on every issue. The tribunal found the respondent had harassed the claimant (or alternatively directly discriminated against her) on the grounds of belief by, among other things:

• the CEO sending emails implying the claimant was transphobic;
• the CEO encouraging AB to submit a complaint about the claimant;
  instigating a ‘deeply flawed’ investigation and conducting a ‘completely spurious and mishandled’ disciplinary process; and
• failing to apologise or inform senior employees that there was no evidence of the claimant being transphobic.

The tribunal also found that the respondent had subjected the claimant to indirect discrimination and unfairly constructively dismissed her.

Strikingly, the tribunal found that much of the respondent’s conduct not only had the effect of harassing the claimant, but that this was its express purpose. The tribunal held that the respondent’s purported reason for taking action against the claimant (protecting AB) was a ‘pretext’. The real motive was ‘to make an example’ of the claimant, to ‘make life unpleasant’ for her and to further the CEO’s agenda of ‘cleansing the organisation’ of those whose did not share the management’s beliefs.

Unsurprisingly given those findings, the tribunal was sharply critical of the respondent, labelling the CEO’s behaviour as ‘egregious’ and describing the process the claimant was subjected to as a ‘heresy hunt’ reminiscent of the works of Kafka.

Lessons

Coming as it does after five other successful claims by gender critical claimants, the primary findings in Adams are not surprising. Nor does the judgment establish any novel points of law. However, it does strengthen the lessons drawn out of Meade and Phoenix.

In particular, the tribunal has reiterated that an employer’s job is to balance the conflicting rights of its employees, not to side with the ones whose beliefs it shares. The tribunal set out a poetic paean to pluralism in this regard, noting that: ‘Tolerance means not just accepting views which one may not be terribly bothered about but means accepting that others hold views which may cut to the core of one’s being.’

The tribunal echoed the findings in Meade and Phoenix that gender critical beliefs cannot be labelled as bigoted, noting that while some at the respondent centre believed the claimant’s views ‘equated to transphobia and should be regarded as equivalent to white supremacist or similar hateful belief systems that is not the view which the law takes’. The tribunal also highlighted that gender critical beliefs are not inherently hostile to trans people, noting the claimant has ‘trans positive but also sex realist beliefs’.

Individual employees of the respondent have been subject to criticism both in and as a result of the judgment. The bulk of this was directed at the CEO, but the tribunal also criticised AB, whose reaction to the claimant’s email was dismissed as ‘nonsense’ and ‘completely overblown’. This is a further illustration that failing to take the right approach to balancing rights can end up damaging all parties, not just the employee the employer disagrees with.

The tribunal also criticised the Chair of the respondent’s disciplinary panel for not knowing about Forstater, confirming the importance of ensuring belief discrimination is included in equality and diversity training.

A final lesson is that comments made in other public forums may be deployed in the tribunal to significant effect. Here, the CEO had made comments on a podcast and at a talk that intimated survivors of rape who want a biologically female counsellor are ‘bigots’ and that firing was just as important as hiring in creating an ‘inclusive’ work environment. These comments were cited by the tribunal as evidence of the respondent’s unlawful motives. They took on particular importance because the CEO chose not to give evidence, but, in principle, the same approach could be taken even if an employee appeared to defend or explain earlier remarks.

Kerenza Davis, Blackstone Chambers

KEY:

Adams Adams v Edinburgh Rape Crisis Centre ET4102236/2023
Meade Meade v (1) Westminster City Council and (2)
Social Work England ET2201792/2022 and ET2211483/2022
Phoenix Phoenix v Open University ET3322700/2021 and ET3323841/2021
Forstater Forstater v CGD Europe UKEAT/0105/20/JOJ