There has been a significant amount of debate and press attention on ‘gender-critical views’ in recent months after comments made by the author JK Rowling and more recently, the Attorney General Suella Braverman. Differences of opinion in many areas have the potential to cause conflict in the workplace but these can be particularly challenging when discrimination rights are engaged under the Equality Act 2010 and an employee’s views, opinions, dress or appearance causes objection or offence to others. For employers, this can create the unviable position where an organisation has to balance different individual rights and potential claims.
It is not just the potential for conflict between employees where the challenges can arise; there have been cases where the differing views and beliefs can impact upon individuals in the workplace when they engage with third parties, members of the public, customers and service users. And it is important to remember that workers, members of the public, customers etc. also have rights under the Equality Act not to be discriminated against or harassed when accessing goods, facilities and services.
Two cases which have been reported recently illustrate the different considerations. Before the current focus on pronouns, trans rights and gender identity, there were cases which explored discrimination rights involving conflicting issues: these, for example, have arisen in cases involving religion and belief (such as wearing a cross visibly or proselytising) and sexual orientation vs homophobic views (such as objecting to same-sex, civil partnerships or marriages).
The two recent cases worthy of note (although each could be the subject of further appeals) are Forstater v CGD Europe  and Mackereth v DWP  EAT.
- In Forstater, the claimant expressed (in sometimes strong terms) her gender-critical views and belief that gender is an immutable biological fact which meant that one’s gender could not be changed from that with which you are born. She succeeded in most of her complaints of direct discrimination (when her visiting fellowship was not renewed), despite an acceptance that, to some, the way her views were expressed were offensive or upsetting.
- In Mackereth, the claimant’s particular religious views led to him raising concerns about being required to refer to trans service users by their preferred pro noun. When concerns were raised with him about his stance, he alleged discrimination and harassment (on which he ultimately failed).
Without getting into a detailed analysis of the specific cases, it is worth highlighting the legal principles which apply in such scenarios:
- The Equality Act 2020 protects against discrimination and harassment linked to religion and belief, and also protects individuals from discrimination because of gender reassignment. Belief is defined quite widely and includes a philosophical belief.
- Harassment would be regarded as unwanted conduct which violates an individual’s dignity or which an individual finds intimidating, hostile, degrading, humiliating or offensive AND where (viewed objectively) it is reasonable for them to find it offensive etc.
- These rights are underpinned by obligations under the Human Rights Act 1998 to uphold Article 9 of the European Convention on Human Rights, which is the right to freedom of thought, conscience and religion and, importantly, the right to manifest those beliefs. But this is a qualified balanced against the rights and freedoms of others.
- Finally, there is generally a distinction in law between respecting a person’s religion and belief and, as a separate issue, addressing concerns which may arise from the way in which the belief is expressed (or manifests itself).
Practical issues and lessons learnt
A major challenge is how to ensure the above legal rights and protections are considered and balanced. On the basis, prevention is better than cure whilst also planning for the worst from these previous cases. Here are some tips for employers:
- Ensure that diversity and inclusion policies (and any training) address the need for respect at work. The emphasis here is on the need for tolerance, recognising and respecting differing views. Are your policies up to date and do they address issues around conflicting views and behaviours? Giving assurances about equal treatment is not enough: dignity at work, anti-harassment, fairness, valuing diversity and avoiding bias should all be addressed.
- It is also important for the organisation’s own obligations and standards to be conveyed clearly. Equality and diversity policies should extend to workers, third parties, customers, etc. In some service sectors, contractual obligations may well impose equality standards; many public bodies, for example, are subject to public sector equality duties which include a duty to promote equality.
- Where concerns and objections do arise, there is a need to have honest, open and respectful discussions: these should be aimed at, for example, improving understanding of the impact that one person’s views have on another/others. HR or an appropriately trained manager should facilitate such discussions. Clearly it is important to ensure these are done sensitively.
- Informal discussions (resolution) should be encouraged to avoid grievances and counter grievances, which can be time-consuming for employers, or worse, litigation. These should be solutions-focused, balancing different views or concerns.
- Where strong objections are raised, explore the extent to which adjustments can or cannot be made, balanced against the employer’s requirements and indeed obligations. For example, agreeing “rules of engagement” or standards of conduct can be useful, as is making clear what can and will not be tolerated.
- Where the issue is more serious, consider making use of more formal conflict management tools, such as formal or external/expert mediation.
- In some professions, the ability to challenge or express opinions is an important factor – for example, academic freedoms in further and higher education. In these environments, having clear guidance and rules can be useful. As happened in Forstater, agreeing that opinions are clearly communicated as personal rather than the organisation’s can be important.
- The age of social media means that social media and communications policies also need to address these issues. And remember, no-one should be penalised or face retaliation for raising legitimate concerns because to do that would also be unlawful. The law protects those who raise discrimination concerns from being victimised for doing so.
If you have any questions on the issues raised in the article or would like to discuss updating your diversity and inclusion policies, please contact Audrey Williams.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.