Gender critical views held to be a belief under the Equality Act

In Bailey v Stonewall Equality Ltd & Ors, it was held that the Claimant suffered discrimination and victimisation on account of her beliefs around gender, including her belief that gender is defined by biological sex.

This case follows Forstater v CGD Europe where it was held last year that gender-critical views were protected under the Equality Act 2010.

These cases highlight the importance for employers to consider whether a belief is protected under the Equality Act before taking action against employees for their views.

Background to Bailey v Stonewall Equality Ltd & Ors

The Claimant was a criminal defence barrister at Garden Court Chambers (“GCC”) who took a particular interest in the debates surrounding Trans and women’s rights. In December 2018, the Claimant expressed her opposition to GCC becoming a “Stonewall Diversity Champion” (an LGBTQ charity – “the Charity”), as the Claimant felt the Charity intimidated and threatened anybody who questioned their stance.

In October 2019, the Claimant set up an organisation called LGB Alliance and made a number of tweets on Twitter, which led to the charity, along with numerous others, making complaints of transphobia against the Claimant.

Eventually, GCC published a public statement confirming the Claimant was subject to an investigation as a result of her tweets.

The Claimant made claims against GCC for discrimination on the grounds of her beliefs (the discriminatory acts being the downturn in work and the tweet by GCC confirming the Claimant was under investigation).

The Claimant also made a claim under s111 Equality Act 2010 (EA 2010) against the Charity as the Claimant alleged they had instructed, caused or induced GCC to unlawfully discriminate against the Claimant on the grounds of her belief.

Judgement

The Employment Tribunal (ET), relying on Forstater v CGD Europe, held the Claimant’s gender-critical beliefs were a protected characteristic under the Equality Act 2010 as a “belief”.

The ET went on to say that they could not find evidence the Claimant lost work due to her beliefs. However, the ET held that the tweet which announced an investigation against the Claimant was discriminatory. As a result of this, the ET awarded the Claimant £22,000 for injury to feelings, which included £2,000 in aggravated damages. Aggravated damages are awarded where a discriminator’s actions are deemed to be particularly oppressive.

In relation to the claim against the Charity, the ET found that the Head of Trans Inclusion had contacted GCC to make a complaint about the actions of the Claimant, however, this did not amount to a clear request for action to be taken against the Claimant and therefore the claim under s111 EA 2010 failed.

This is a first-instance decision at the Employment Tribunal, and therefore GCC could appeal against this decision to the Employment Appeal Tribunal.

Impact on employers

This case is a reminder for employers to take careful consideration when deciding on the action to take against an employee who has expressed their views and to consider whether these views amount to the protected characteristic or belief under the Equality Act to avoid any allegations of discrimination.

Furthermore, it is important for employers to ensure they apply the law in the way it should be applied rather than succumbing to the pressure of external organisations or other factors.

Contact our employment law solicitors today

If you have any questions regarding your business and its obligations under the Equality Act 2010, please do not hesitate to contact a member of the employment law team at Ashtons Legal.

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