Belief (which also covers religion) is one of the 9 protected characteristics under the Equality Act 2010 (‘EqA 2010”), which makes it unlawful to discriminate against an individual due to their belief.
There has been recent case law and confusion surrounding so-called gender critical beliefs and the protection they warrant, and the inevitable balancing act which an employer must now be mindful of where these issues arise.
So, what is belief?
Section 10 of the EqA 2010 defines belief as “any religious or philosophical belief and a reference to belief included a reference to a lack of belief.”
In order for a belief to be protected, it must pass the criteria set out in the case of Grainger Plc v Others v Mr T Nicholson [2009] UKEAT, which states that:
- The belief must be genuinely held.
- It must be a belief and not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
What are gender critical beliefs?
Gender critical beliefs are generally defined as the belief that sex is biological, immutable and binary.
How are gender critical beliefs protected?
Recent Tribunal case law has found that gender critical beliefs are protected as a “belief” under the Equality Act. They had previously been found to fail as they were not worthy of respect in democratic society, but recent case law has clarified that gender-critical beliefs do warrant such protection.
However, employers must be mindful that whilst the belief itself is protected, the manifestation of that belief must be dealt with proportionately. So, for example, sharing a gender critical belief on X must be dealt with very differently by an employer than deliberately hateful language or misgendering of colleagues.
What the risks of employers getting it wrong?
Employers must navigate these beliefs thoughtfully, balancing the rights of individuals to hold certain beliefs with the need to foster a respectful and inclusive environment.
Failure to protect employees’ gender critical beliefs may result in claims of direct and indirect discrimination, harassment or even victimisation. However, employers should also ensure that any expressed views do not create a hostile environment or discriminate against transgender individuals, respecting workplace equality and inclusion.
Realistically, this is such a “live” issue in law and such an ongoing difficulty to balance, that our advice would be for an employer to obtain legal advice if as soon as any issues in relation to gender-critical beliefs become apparent.
To maintain good practice in the workplace, employers should also ensure they have the correct policies in place and ensure regular up to date training is provided on how to support diversity and inclusion in the workplace.
At Thrive Law we can help employers check their policies are in line with their values and can work with employers to provide the correct type of training as required by the organisation, as well as help employers navigate difficult situations surrounding employee conduct and the impact on colleagues. Please reach out to the Outsourced HR and Employment Law Support team here at Thrive via enquiries@thrivelaw.co.uk for more information.
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Disclaimer
Please note this blog is for reference purposes only and is only accurate at which the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific Legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any actions. Please contact us if you have any questions on enquiries@thrivelaw.co.uk.
