Court provides further clarity on managing employees who express potentially offensive beliefs

Over the summer the women’s boxing at the Paris Olympics became a prominent battleground on gender identity issues.

The debate arose over the International Olympic Committee’s decision on the gender eligibility of the Algerian Olympic boxing champion, Imane Khelif, who has competed as a woman throughout her career.

Khelif has now filed a cyberbullying lawsuit in France against author JK Rowling and Elon Musk for posts made on social network platform X, criticising her taking part in the match.

Another key “battleground” in this area is within the workplace: just before the Olympics started, the Employment Tribunal in England and Wales handed down a judgment in Orwin v East Riding of Yorkshire Council, providing further clarity on the way in which these issues should be handled by employers.

Legal framework

“Religion and belief” is one of the nine protected characteristics under the Equality Act 2010. Whilst “religion” as a protected characteristic is perhaps more easily identified, whether a “belief” is protected under the law is a more complex analysis. The Employment Tribunals have established a test for determining whether a “belief” qualifies for protection under the law, known as the Grainger test.

In order for a “belief” to protectable at law, it must

• Be genuinely held
• Concern a weighty aspect of human behaviour
• Reach a certain level of cogency, seriousness and cohesion
• Be worthy of respect in a democratic society.

For example, ethical veganism is a protected belief but belief in a football team is not.

A line of cases in the Employment Tribunal, including the high-profile case of M Forstater v CGD Europe and others, has established that gender critical beliefs – the belief that an individual’s biological sex is a material reality and not to be conflated with gender identity – could meet the Grainger criteria.

The Employment Appeal Tribunal (“EAT”) explained their rationale in Forstater: that beliefs which “may be profoundly offensive and even distressing to others […] must be tolerated in a pluralist society” and so gender critical beliefs are capable of protection as a qualifying “belief” depending on the facts of the case.

The legal position in an employment context is that an employee can hold gender critical beliefs, and they can express those beliefs, provided that the way in which they express themselves is not “objectionable”.

This is extremely difficult to navigate: it will not always be clear when an employer can lawfully step in to manage behaviour which concerns the expression of potentially offensive views including gender critical beliefs. The penalties for an employer getting this wrong can be severe: successful claims in the tribunal in this area have potentially uncapped financial awards available.

Caselaw update

The EAT has already provided guidance in its judgment in Higgs v Farmor’s School – see our update here. In essence, the law requires employers to act proportionately before disciplining an employee for expressing gender critical beliefs. The EAT encouraged employers to:

• Carefully consider exactly what they are seeking to achieve in any disciplinary process
• Ensure that any such objective is justified
• Consider whether it can achieve its objective in a less intrusive way.

In the more recent case of Orwin, the claimant’s employer – the council – had introduced a new policy inviting staff to add their preferred pronouns to their email signature if they wished to do so.

The claimant disagreed with this policy on the basis of his gender critical beliefs, and in protest used an email signature mocking the idea of gender self-identification: “XYchromosomeGuy/AdultHumanMale”. He chose not to comply with several management requests to remove this email signature and was dismissed following a disciplinary process.

The claimant brought a claim against the council for direct discrimination relating to his protected belief.

Whilst the tribunal agreed that the belief itself could qualify for protection under the Equality Act 2010, it determined that the email signature was deliberately provocative. It also found on the evidence that the council had sought to use less intrusive approaches than dismissal by asking the claimant to remove his email signature and to discuss a form of wording that both parties would find acceptable. It was also relevant that the council was required to have regard to its public sector equality duties.

The tribunal therefore dismissed the claim, holding that the council did not discipline the claimant because of his protected belief, but rather because the he acted inappropriately in his expression of that belief. The way in which these beliefs were expressed was objectionable, and in turn the council was permitted to discipline the employee.

Whilst not binding on other courts, this case is a good reminder to employers that individuals holding gender critical beliefs do not have carte-blanche to express themselves as they wish and employers taking action against offensive behaviour is permissible provided that the decision-making is proportionate.

Further thoughts

1. Before investigating or taking disciplinary action, employers should ensure that decision-makers are properly trained on the issues at hand
2. Avoid knee-jerk reactions and consider taking legal advice – even if just for an initial sounding board – at the outset
3. Ensure that any decisions are carefully and contemporaneously documented, addressing the objective of the decision, identifying whether alternatives were considered with an analysis of their feasibility and the employee’s response to the same.