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An individual is protected from discrimination based on their religion or belief. A philosophical belief can be protected if: it is genuinely held; it is a belief not just an opinion; it involves a weighty aspect of human life and behaviour; it attains a certain level of cogency/importance and it is worthy of respect in a democratic society. In Mackareth v DWP and Forstater v Centre for Global Development, two employment tribunals found that individuals who believe that people cannot be transgender (because god only creates men and women) are not protected by the Equality Act 2010. The employees’ beliefs, which included a refusal to refer to trans people by their chosen pronouns, were incompatible with human dignity, conflicted with the rights of others and were not worthy of respect in a democratic society. But employment tribunal decisions are not binding and another employment tribunal in Bristol has recently refused to follow suit in Higgs v Farmor’s School.

The employee was employed as a pastoral administrator and work experience manager. Someone outside the school complained about comments posted on her Facebook page which they said were transphobic and prejudiced against the LGBT community. The employee’s Facebook page was private but included parents at the school. One post invited people to sign a petition to stop schools teaching about same sex relationships and gender being a matter of choice. The employee had also reposted articles by other people on these issues which might have been relevant for several children in the school.

The employee was dismissed for gross misconduct for behaviour which contravened the school’s conduct policy including discrimination and serious inappropriate use of social media. She claimed she had been directly discriminated against and harassed on the grounds of her beliefs. Those beliefs included a lack of belief in gender fluidity and a lack of belief that someone could change their biological sex or gender (as well as others, including ones relating to same sex marriage). The employment tribunal found that her beliefs were protected under the Equality Act 2010. She had rights under the ECHR to respect for private and family life, freedom of religion and freedom of expression. If those rights only applied to beliefs that upset no one then they would be worthless. However, they said she had not been discriminated against because of those beliefs. Her Facebook posts could not have had any expectation of privacy when her ‘friends’ included parents and screenshots could easily be taken and disseminated. In relation to direct discrimination, the school had reasonably considered that people reading her posts might think she was both homophobic and transphobic. This could negatively impact on parents, pupils and the community. The tribunal found that she was dismissed because her Facebook posts might indicate that she held unacceptable views about gay and trans people – beliefs which could not qualify for protection under the EA – rather than her actual beliefs about teaching gender fluidity in schools. She had not been harassed either. The disciplinary process was unwanted conduct, but it was related to the realistic perception that she was homophobic and transphobic rather than the expression of her beliefs. It did not have the purpose or effect of violating her dignity and didn’t create an intimidating or hostile environment.

The tribunal in this case tried to distinguish the facts of this case from Mackareth and Forstater. In Mackereth the employee was a doctor, in Forstater the employee was a visiting fellow at the Centre for Global Development. The tribunal said the employees’ beliefs in the two other cases might have resulted in discrimination against members of the trans community. But in Higgs there were LGBT pupils at the school and the employee had direct contact with children so it’s difficult to see how the situation is different. We understand that all these cases are being appealed, which will hopefully result in future appellate guidance. This will be welcomed by employers who try to find the tricky balance between the rights of the LGBT and trans communities and the rights of those with conflicting beliefs.

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk.