One of the issues I talk about a lot with clients is the extent to which employees with beliefs that might conflict with the values of the employer need to be accommodated – and how employers should deal with potential tensions arising from differing belief systems among employees. 

On social media I try to stay away from these debates, particularly in relation to transgender rights. I stay away not because the issue is unimportant but because the debate on social media is so polarising and, frankly, exhausting. It is easy to get locked into interminable discussions that seem to turn on rather obscure points of terminology that arouse intense feelings on both sides. Use the wrong phrase and it feels like you get shouted at by strangers for days on end. 

But over the weekend I found myself in an interesting Twitter discussion about an employment law question to do with the rights of someone who is ‘gender critical’ (I’m not falling into the trap of trying to define that – google it if you like) and whether they could be compelled by their employer to refer to a colleague as a woman when they believed that colleague to be a man. I asked for a specific scenario and promised to give a proper legal analysis of how I thought such a case would go. 

Here is the scenario I was given: 

“A person is told they *must* refer to a male colleague as “she/her” and they say no. They say they will use names where possible. They are dismissed and are suing for belief discrimination. They haven’t said anything else to the colleague and haven’t “misgendered” them. They have simply refused to submit to compelled speech.”

In this post I’m going to pick apart the legal issues and look at how discrimination law would currently approach such a case.

Protected beliefs 

I am going to assume that the employee’s refusal stems from beliefs that can be called ‘gender-critical’ and that following the case of Forstater v CGD Europe, those beliefs would count as philosophical beliefs under the Equality Act. It is worth bearing in mind, however, that it is quite possible for someone to refuse to comply with this sort of instruction in the absence of any clear philosophical beliefs. They may refuse out of spite or prejudice in which case their actions would certainly not be protected. 

I am also going to assume that this person has less than two years’ service and cannot claim unfair dismissal. So the question is not whether the employer has behaved reasonably in dismissing the employee. The only question is whether the dismissal amounts to discrimination.

Direct Discrimination

In a direct discrimination case (I’m leaving indirect discrimination out of the equation here) what must be shown is that the dismissal amounts to less favourable treatment “because of a protected characteristic” – the protected characteristic in this case being the employee’s belief. 

So the question is we ask is: why has the employee been dismissed? If the dismissal is because of the protected characteristic, then discrimination is established. If there is some other reason (good or bad) and the protected characteristic plays no part in the decision then there is no direct discrimination. 

The employer might start off by arguing that the employee has not been dismissed because of their beliefs at all. It is the employee’s conduct that they are concerned with. The reason for the dismissal is the employee’s refusal to obey their instructions to refer to a colleague using their preferred pronouns. Anybody who behaved that way would be treated just the same irrespective of whether their behaviour was prompted by their beliefs or simply a lack of consideration. 

I have some sympathy with this approach but it seems that this is not the right analysis. This is because the Equality Act has to be interpreted in order to give effect to the rights guaranteed by the European Convention on Human Rights. Article 9 of the Convention guarantees freedom of religion and belief and specifically says that everyone has the right to “manifest” their belief in “in worship, teaching practice and observance”

Manifesting a belief 

To understand the next step in the argument we need to look at what it means to ‘manifest’ a belief. The case that tells us what manifesting means is Eweida v UK – the case of the British Airways employee who claimed the right to wear a visible silver cross in breach of the employer’s dress code. When looking at the question of what manifesting meant, the Court said this:

In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question

para 82

This means that for our employee’s behaviour to amount to a manifestation of their beliefs it does not have to be an obligation imposed by those beliefs, but it does have to have an intimate link with them. There must be a ‘sufficient close and direct’ link between the conduct in question and the underlying belief. 

This is a question of fact for the Tribunal to decide, but I would think that an employee refusing to act in a way that is inconsistent with their beliefs is almost certainly a manifestation of those beliefs. 

Objectionable manifestations

The reason we need to decide this point is that to decide whether our example amounts to direct discrimination we have to ask whether the employer could reasonably object to the way in which the employee manifested their belief. 

We get this from the Court of Appeal decision in Page v NHS Trust Development Authority which concerned a Trust Director who repeatedly gave interviews about his views – derived from his Christian beliefs – about same sex relationships.  Lord Justice Underhill said

In the context of the protected characteristic of religion or belief the EAT case-law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. Of course, if the consequences are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself. 

para 68

I think the law has taken a wrong turn here. Concepts of reasonableness and justification belong in the realm of indirect rather than direct discrimination. I think the Court of Appeal in Page was overstating the strength of the case law from the EAT (the key cases to look at are Wasteney v East London NHS and Grace v Places for Children) But we are where we are. 

Following Page then, the question to be asked is whether our employee’s conduct was a manifestation of their belief “to which objection could justifiably be taken”. If it is then the dismissal was because of the conduct and not the belief. If objection could not justifiably be taken to the employee’s behaviour then the dismissal was because of the belief and the dismissal will amount to direct discrimination. 

So can the employer reasonably object to an employee refusing to use the preferred pronouns of a trans colleague?

Which side are you on?

At this point I suspect my readership divides. Those who instinctively support the employee will say that no objection could justifiably be taken to them referring to a colleague by reference to their biological sex. Those on the other side will say that of course an employer can object to an employee refusing to obey an instruction designed to be inclusive towards trans colleagues. 

But how will a Tribunal approach this, given that they cannot take sides in that debate? (anyone whose instinctive response is “it’s not a debate!” go back three places and miss a turn)

Article 9(2)

A recent case that attempts to answer the question is Higgs v Farmor’s School. The EAT was considering the case of an employee dismissed from a school because of Facebook posts – based on her Christian beliefs – criticising education on issues such as same sex relationships and trans rights.  Having found that the Tribunal had taken the wrong approach, the EAT sent the case back with guidance about how the issue needed to be tackled. 

The EAT relied on Article 9(2) of the Convention. Having set out the freedom to manifest beliefs in Art 9(1), Article 9(2) says that:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

So Article 9 does envisage some limitation on the right to manifest a belief – but only if it is “prescribed by law” and “necessary in a democratic society” to protect the rights and freedoms of others (to pick the grounds most relevant to the case we are considering case)

In Higgs the EAT said  “there can be nothing objectionable about a manifestation of a belief… that would not justify its limitation or restriction under [Article 9(2)]”. (Decision para 82). In other words, you can only object to the manifestation of a belief if it would be permissible to restrict it under Article 9(2).

A Balancing Act

This is important – and rather smart. The EAT has given some objective basis to the otherwise subjective question as to whether objection can reasonably be taken to something. In doing so they have set the bar quite high. It is not good enough that some people would object to what the individual is doing – it is not even good enough if most people would strongly object. What we have to ask is whether restricting the employee’s manifestation of their belief was ‘prescribed by law’ and “necessary” to protect the rights and freedoms of others.

The immediate issue that might occur to you is whether you can say that what the employer has done is ‘prescribed by law’. There is certainly no law that requires employers to dismiss people who refuse to use the pronouns that the employer thinks they should use. But as the EAT points out the phrase is wider than that:

It is well established that “law” in this sense has an extended meaning, requiring that the impugned measure should have some basis in domestic law and be accessible to the person concerned, who must be able to foresee its consequences, and compatible with the rule of law.

para 51

I would take from this that if the employer gave a clear instruction to the employee and was acting in accordance with its own policies on equality and diversity, that would probably be enough. Let’s take that box as being ticked as I think a Tribunal would be keen to gloss over this question and move to the next one.

The next question is whether the instruction given by the employer is necessary in a democratic society to protect the rights of others. The EAT in Higgs made it clear that this required a balancing exercise between the interference with the fundamental rights of the employee and the rights and freedoms of others. It seems that here it is the employer’s actions we must look at rather than what the employee was being asked to do. We have to look at the employer’s decision to dismiss the employee and weigh up its reasons for acting that way.

So why is the employer insisting on employees using the preferred pronouns of trans colleagues to the extent that it dismisses those who don’t comply? The argument, presumably would be that gender reassignment is a protected characteristic and that the employer is obliged to ensure that trans employees are accepted and treated with respect. There is no question that it is upsetting for a trans woman to be referred to using male pronouns and the employer is seeking to protect them from the distress that the employee’s behaviour is likely to cause. 

That is, I think, a reasonable objective for an employer to have. The question is whether it is a sufficient reason to justify dismissal.

My view is that it is not – and that the dismissal of the employee in the circumstances given would amount to direct discrimination. 

The first reason is that the EAT in Higgs emphasised that the starting point needed to be a recognition of the ‘essential nature’ of the right of freedom of belief (para 83). We have to accept that the expression of a belief may be protected even if that causes offence to others – and that any attempt to restrict the manifestation of a belief will only be justified in limited circumstances. In the example given, the employee’s behaviour is not overt. There is no abuse directed at a fellow employee and the employee is attempting to refer to the colleague without resorting to pronouns at all when possible. While some might find this conduct offensive, the extent to which it intrudes on the rights of others is limited and the price imposed on the employee – dismissal – is high. 

Different circumstances might lead to a different conclusion. I am given a scenario where an employee, in conversations with colleagues, seeks to avoid using the preferred pronouns of another colleague. The answer might be different if, for example, that employee was speaking to a client and constantly referred to a trans colleague as ‘he’. It would certainly be different if the employee refused to refer to customers or service users using their preferred pronouns (see Mackereth v DWP). 

It all just depends…

One of the problems with this issue is that many people approach it with a passionate intensity where the right answer just appears to them to be glaringly obvious. You may feel that – obviously – an employee should be free to refer to a trans woman as a man because that reflects the biological reality. You may feel that – obviously – a refusal to respect the gender of a trans woman equates to a denial of their whole identity and is necessarily a form of unlawful harassment. But when we are looking at discrimination case we have to accept that the law may protect people we fundamentally disagree with. A Tribunal cannot (or at least should not) just pick a side, it must strike a balance between competing rights. 

There is of course an artificiality in scenarios as straightforward as the one I have been looking at. In any real case the Tribunal would have actual incidents to look at and a whole context of the detail and tone of what was said and done. As the EAT said in Higgs, these cases are very ‘fact-sensitive’. Different scenarios would have different outcomes. In employment law that is often the most we can say.