Treat gender beliefs like you would any religious belief // five top tips for employers from recent cases
A number of recent high-profile cases have drawn public attention to the treatment of gender beliefs. Broadly speaking, gender beliefs state that sex is biological, immutable and should not be confused with gender identity.
Those who have no opinion on the subject, whether through indifference, indecisiveness or otherwise, are considered to have a lack of belief attracting the same legal protections (“gender-critical beliefs”).
In this article, we have defined five best tips that employers need to take into account when dealing with the expression of beliefs in the workplace.
- Assuming that a belief has a good chance of being protected
Under the Equality Act 2010 (EqA), employees are protected from harassment, victimization or discrimination because of their religious or philosophical beliefs. There is a well-established test for determining what constitutes a protected philosophical belief. It must be a genuine and compelling belief that relates to some aspect of human life or behavior and should be worthy of respect in a democratic society. A court will generally not expect too much from a person seeking to protect a creed. Until recently, this last part of the test was likely to be the stumbling block for controversial – and some might say, offensive – beliefs.
This is no longer the case. The majority of convincing and sincere beliefs are capable of protection provided they do not stray into extreme areas such as Nazism. It is not for an employer to choose which beliefs they are willing to tolerate. A belief protected by the LEQA and a belief deemed acceptable by an employer are two very different concepts. In reality, the latter is irrelevant. Once a belief is a protected philosophical belief, it enjoys the same protection as any religious belief. As such, employers should never take disciplinary action because of an employee who simply holds a belief, just as they should never take such action simply because someone has a particular religious belief.
As noted above, it is important to reiterate that the protection of EqA also extends to disbelief. In this context, the disbelief threshold is lower in that it need not satisfy the members of the belief test. As above, disciplinary action should never be taken solely because of this.
- Never act in haste
In light of the above threshold, employers should proceed with caution. Unless an employer is absolutely certain that a belief does not fall within the broad protection of the EqA, the belief itself should not be the reason for disciplinary action. This is often the area where employers go wrong. In Forstater v CGD Europe & others, Ms Forstater’s employer acted on the false assumption that her gender belief would not be protected by the EqA. As recent case law has clarified, gendered beliefs are most certainly protected by EqA.
If an employer is in any doubt as to whether a belief is likely to be protected, it is best to assume that it will be. Attention can then be directed to the most important consideration of how that belief manifests itself, which may, depending on the circumstances, provide more justifiable grounds for disciplinary action, if any.
- Distinguish between belief and manifestation
As the manifestation of a belief is likely to have an impact on others, individuals do not have the absolute power to do so without consequence. As noted in Forstater, manifesting a lack of belief in transgenderness by misgendering a trans person may constitute harassment – whether they engaged in harassment is a question of fact to be determined on a case-by-case basis. If it amounts to harassment, it will likely be grounds for disciplinary action and should ideally be stated in an anti-harassment policy.
It is important to note that an employee with a belief protected under the EqA does not provide him with both a shield and a sword. Although their belief protects them against discrimination because of said belief, it does not give them additional protection if they are found to have discriminated against others by expressing that belief. As Forstater points out, holding gender beliefs does not entitle an individual to abuse trans people with impunity if doing so would amount to harassment. Everyone is subject to the same prohibitions of discrimination, victimization and harassment in the workplace under the EqA.
- Know the difference – direct and indirect discrimination
The distinction between direct and indirect discrimination is one that is often misunderstood, yet one of vital importance to employers. Direct discrimination is never permitted in the case of protected philosophical beliefs. An employer cannot treat an employee less favorably simply because of their protected belief. However, there are situations in which indirect discrimination box be eligible. If an employer applies a particular policy, criterion or practice (PCP) to its staff, which disproportionately affects an individual or group of individuals, it will not be discriminatory if the PCP is a proportionate means of achieving a legitimate objective.
The recent Mackereth v. DWP case illustrates indirect discrimination deemed justified with respect to gender-related beliefs. Here, the DWP enforced a policy requiring its employees to address service users by their preferred pronouns. The Employment Appeals Tribunal (EAT) acknowledged that the group disadvantage for Christians who held beliefs akin to gender beliefs had been established, although the claimant accepted that his particular beliefs were not shared by all Christians. Nevertheless, the EAT considered the policy to be a proportionate means of achieving the employer’s legitimate aims of ensuring that users of transgender services were treated with respect and in accordance with their rights under the EqA and provide a service that promoted equal opportunity.
Whether or not an employer’s policy is justified will depend on the facts. It is not yet known how far employers can push such a policy. For this reason, any pronoun policy must be carefully written and even more carefully enforced. Application without a clear purpose and careful justification can potentially amount to harassment of those who hold gender-specific beliefs. For example, a mandatory policy requiring all staff to state their pronouns in their electronic signature is unlikely to be justifiable. However, if the policy is designed to achieve a legitimate aim and there are no less discriminatory alternatives to achieve it, indirect discrimination against certain employees with gender beliefs may be justifiable. in the circumstances.
As part of best practice, any company policy should ideally go a little further than accurately reflecting the EqA. This will explain to employees how they are expected to behave while reducing the likelihood of any potential discrimination against those with protected beliefs.
- Implement a social media policy
An employee expressing a belief outside of the workplace is a more difficult situation to handle, but not impossible. If an employer is concerned about how their employees’ conduct online is impacting the business, the best solution is to ensure that a strong social media policy is in place. This should make it clear that the employer will have the right to discipline the employee for any violation of the policy, which could include discriminatory behavior online in circumstances where such behavior may be linked to the employer. Without this, it will often be much more difficult for an employer to discipline an employee for the inappropriate manifestation of their beliefs outside of the workplace.
That being said, a social media policy will not help an employer restrict an employee’s opinions expressed through lawful speech and engagement in public debate on matters relevant to their protected belief.
An employer should seek to complement a strong social media policy with equal opportunity and anti-harassment policies to ensure the right balance, as well as training on the parameters of permissible conduct.