Recent tribunal judgements on freedom to express gender critical views highlight the growing challenge for employers in safely navigating discrimination in the workplace in the face of increasingly complex social attitudes.

In one victory for gender-critical views, an employment tribunal said that being branded transphobic for holding gender critical views and expressing them was an insult.

Jo Phoenix, a criminology professor at the Open University, had established a network to undertake gender critical research but found herself blocked from speaking on the topic. The tribunal ruled she had suffered victimisation, harassment and direct discrimination due to the university’s failure to protect her from ill treatment arising from her gender-critical beliefs.

This followed hard on the heels of a discrimination ruling in favour of Rachel Meade, a social worker in Westminster City Council, who posted feminist views about the gender debate on her private Facebook page.  A transgender colleague, who was connected on Facebook, complained the views were transphobic and Social Work England responded by initiating a fitness to practise investigation, which triggered Meade’s suspension by her employer.

Criticising the action, the tribunal judgment said this was “indicative of a lack of rigour in the investigation, and an apparent willingness to accept a complaint from one side of the gender self-identification/gender critical debate without appropriate objective balance of the potential validity of different views in what is a highly polarised debate”.

In the UK, the Equality Act 2010 prohibits discrimination and harassment that is related to a protected characteristic.  These are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation; also pregnancy and maternity where the protection against harassment is subject to slightly different rules.

Harassment is unlawful and occurs when a worker is subjected to unwanted conduct related to a protected characteristic that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  Examples include making offensive sexual comments, or abusing someone for their race, religion or sexual orientation.

It means all employers have a duty of care to protect their workers and may be liable for discrimination or harassment in the workplace if they have not taken reasonable steps to prevent it.

Trainee Employment Law Solicitor, Ellie Temple here at Wollens said  “These tribunal cases highlight the growing pressure on employers to keep pace with both the law and changing attitudes across society.

“Employers are undoubtedly finding it increasingly difficult to deal with complaints where an employee’s beliefs conflict with those of their organisation, other staff or customers, and are searching for clear guidelines.  But it’s not possible to define in black and white terms as each case is fact sensitive.  Having up to date equal opportunities policies is important, but more important is to avoid taking sides without proper review and investigation.

“Perhaps the simplest takeaway is to reflect carefully, recognising that when people voice beliefs they may not fit neatly into a right or wrong category, even though others may find them distasteful or distressing.”

J Phoenix v The Open University

R Meade v Westmister City Council and Social Work England

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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