The case of Forstater v Centre for Global Development (CGD) concerns Maya Forstater, a former contractor at CGD, whose contract was not renewed following comments she tweeted expressing her beliefs about sex and gender, and debating the proposed reforms to the Gender Recognition Act 2004. One such tweet read: “Yes I think that male people are not women. I don’t think being a woman/ female is a matter of identity or womanly feelings. It is biology.”
She brought a claim in the employment tribunal that the non-renewal of her contract constituted discrimination on the grounds of her philosophical belief. The judge dismissed her claim, holding that her views on biological sex being immutable were ‘absolutist’ and was not a philosophical belief protected under the Equality Act 2010. Forstater appealed the ruling, which was recently heard in the Employment Appeal Tribunal (EAT).
The case created a social media storm with the likes of J.K. Rowling tweeting in support of Forstater and igniting a wider debate, beyond social media, about gender critical views. Importantly for employers, it has created a dialogue about a number of issues relevant to workplaces. We highlight three related points for employers to consider.
Social media policies
Forstater used her personal Twitter account, rather than a CGD account, to share her views. As we’ve seen in a number of employment tribunal cases, even where employees are using their personal social media accounts, this can have negative effects on their employers, including adverse publicity and damaging reputational consequences.
There is a fine balancing act between freedom of speech, adhering to company values and expressing opinions that others may find offensive (or worse). To help employers navigate this tricky landscape, a robust social media policy is key. Such policies should clearly state the company’s position on posting content on social media (including personal accounts where a link could be made with the workplace), providing guidelines and a defined framework for staff to follow and setting out the consequences of breaching the policy (such as disciplinary action). If a company doesn’t have a social media policy in place, they should consider implementing one, and training their staff on it as a matter of urgency.
As we’ve seen from the social media engagement and press coverage following the Forstater case, people have very strongly held beliefs on both sides. Fiery debates in the workplace may leave some feeling offended, bullied, harassed, discriminated against and in turn, expose employers to a number of issues.
Threats to workplace congeniality may come not just from within, but also from third parties – suppliers, clients or contractors. A good policy will also take this into account.
It will be crucial for employers to ensure (whether or not the EAT upholds the Forstater appeal), that they have adequate policies in place to deal with such workplace issues. This includes reviewing and refreshing:
- Anti-bullying and anti-harassment policies ensuring they clearly define what behaviour will and will not be tolerated;
- Grievance and whistleblowing policies ensuring that people know how to raise an issue and the process that will follow;
- Equal opportunities policies to encourage a culture of diversity and inclusion.
Education and training
In response to developments such as the #MeToo and Black Lives Matter movements, many employers took a close look at their workplace cultures and values and sought to reshape these accordingly – whether this was by implementing programmes to define appropriate behaviour or starting initiatives to promote inclusion and diversity.
Providing education and meaningful training to workforces on gender identities, the lived experiences of trans people and the common challenges they face may help to create more understanding and awareness, leading to a more inclusive and diverse workplace. If employers choose to adopt trans-inclusive policies such as transitioning at work policies, they should ensure that these do not simply gather dust on a HR department shelf, but that staff are aware of them, receive adequate education and training, and that they are used in practice.
While employers await the EAT judgment in the Forstater case and the implications that will arise from the ruling, there are steps that you can take right now to foster an inclusive workplace culture and minimise the risks of employee claims.
Leanne Raven is a professional support lawyer and Elspeth Hunt an associate in Stephenson Harwood’s employment team