A woman who lost her job after tweeting that people can't change their biological sex has successfully appealed against an Employment Tribunal.

Employers are under an obligation to ensure that staff are not discriminated against based on any of the protected characteristics listed in the Equality Act 2010, two of which are religion or belief and gender reassignment. This means not only avoiding discriminating against your staff, but also protecting staff from discrimination and harassment by co-workers.

The original decision

After her contract wasn't renewed, the woman brought an Employment Tribunal discrimination claim against her employer. She alleged they discriminated against her for holding and expressing the gender-critical philosophical belief that a person's biological sex can't be changed and should not be conflated with gender identity.

Before a tribunal can decide whether an employer has discriminated against a worker based on a protected philosophical belief, it must consider 2 questions:

  1. Is the characteristic recognised as a protected philosophical belief? If so;
  2. Does the way in which a worker manifests and expresses that philosophical belief result in the discrimination and harassment of co-workers?

In short, the original tribunal decided that the answer to the first question was no. There was therefore no need to answer the second question.

To be worthy of protection, there are certain criteria that a philosophical belief must meet. One of these is that 'it should be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others'. The tribunal, in a preliminary hearing, decided that the gender-critical philosophical belief failed this test, and so is not protected under the Equality Act.

The appeal decision

This view has now been overturned by the Employment Appeal Tribunal (EAT), which ruled that the original tribunal didn't correctly apply this test to the facts of the case. They said that a 'philosophical belief would only be excluded for failing to satisfy...[the above criteria]...if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism' and therefore her 'belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection'.

The EAT was keen to make clear that this judgement does not mean that 'those with gender-critical beliefs can 'misgender' trans persons with impunity'. The claimant 'will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else.' They emphasised that 'employers would continue to be liable...for acts of harassment and discrimination against trans persons in the course of employment.'

What this means for you

It's important to note here that this case just confirms that this person's particular belief qualifies for protection under the Equality Act. A new tribunal will have to decide if she was actually discriminated against.

There's also been no decision about whether her conduct amounted to harassment or discrimination of others. In a situation where such beliefs do stray into these categories, then protecting the victim will probably take precedence. But this case has created a tricky balancing act for employers and is likely to be subject to further developments.