I wrote an article recently on the upcoming appeal by Maya Forstater against the Employment Tribunal decision which ruled she had not been discriminated against on the basis of her philosophical belief concerning transgender issues. The tribunal found that Ms Forstater’s beliefs did not meet the test for a ‘belief’ to earn protection under the Equality Act 2010.
This morning (10 June 2021), the decision in the Employment Appeal Tribunal was handed down upholding Ms Forster’s appeal that the original tribunal had incorrectly applied the legal test in making that determination.
This is by no means a landmark case and, while well-publicised and topical, there are no major changes to the law. The EAT broadly only had to decide whether a belief that there are only two biological sexes in human beings, and that it is impossible for a human being literally to change sex, was capable of meeting the definition under section 10 of the Equality Act 2010.
Maya Forstater Judgment
In a 61-page judgment, Mr Justice Choudhry concludes that the original judge incorrectly assessed Ms Forstater’s beliefs as not being ‘worthy of protection in a democratic society’. In his ruling he states that for a belief to not fall within this definition means that an individual is denied their rights to free speech and belief under human rights legislation.
My original article highlighted that this case was less about employment law and more about how human rights impact on the interpretation and application of employment law. Much of the judgment is concerned with how the Tribunal is obliged to interpret the Equality Act in line with human rights legislation.
Forstater: What The Judgment Does NOT Mean
The EAT were clear to add to the judgment that:
- The Tribunal or the court system more broadly is not adopting a position on the transgender rights debate;
- Harassment of and discrimination towards transgender people remains an issue to be determined on its fact by the employment tribunal in line with the Equality Act;
- Transgender people remain protected by the Equality Act whether by section 7 (gender reassignment) or otherwise as appropriate; and
- Employers and service providers remain able to provide safe working environments for transgender people free of harassment and discrimination.
The implications for employers
What is clear is that this judgment does not allow a free-for-all approach to manifestations of beliefs in the workplace. The Respondent’s lawyer argued that there was a risk of creating a ‘two-tier’ system of natal- and trans women which is an understandable concern for the transgender community. The effect of this judgment in law, however, is only that Ms Forster’s belief was capable of falling within s10 of the Equality Act.
Many other controversial opinions have also fallen within this category and it is important to draw the distinction between a belief which entitles an individual to protection and the rights of others who might be affected by its manifestation.
I do not believe this makes it more problematic for employers to address internal workplace disputes. The issues raised in this case are sensitive matters which do require careful consideration and an understanding approach. Ultimately, there will be a conflict between an individual’s identity and the beliefs of another and the employer retains a duty to both.
A Specialist Employment Solicitor’s View
Employment solicitor Chris Dobbs says: "The case does not create new law and reaffirms that the criteria for deciding whether or not a philosophical belief meets the requirements of the Equality Act must take in to account the individual’s human rights. To say that a belief does not meet this criteria is a significant step in denying an individual a fundamental right.
While employers should be mindful of the outcome, from the point of view of disciplining in relation to controversial opinions, this has always been the case and careful consideration should always be given to the rights of an individual even where colleagues and management may disagree with their views."