An academic who was labelled “the racist uncle at the Christmas dinner table” for expressing gender-critical beliefs was constructively unfairly dismissed and suffered post-employment victimisation, a tribunal ruled.
In the latest legal victory for an individual who holds such beliefs, the tribunal also found that the respondent, The Open University (OU), subjected claimant Jo Phoenix to:
- direct discrimination because of her gender-critical beliefs;
- harassment because of her gender-critical beliefs;
- wrongful dismissal; and
- post-employment harassment.
Phoenix is one of a number of gender-critical feminists who believe sex is biological, immutable and should be prioritised over gender identity.
The tribunal panel found that Louise Westmarland, head of discipline in social policy and criminology at the OU, made the “racist uncle” comment, which amounted to harassment.
It came after Phoenix signed a Sunday Times letter questioning a perceived inappropriately close relationship between the LGBTQ+ charity Stonewall and UK universities.
Phoenix also caused disquiet among some senior leaders at OU by expressing her gender-critical beliefs at a Woman’s Place UK talk.
While working at OU, she set up the Gender Critical Research Network (GCRN), the tribunal heard.
The tribunal panel found examples of direct discrimination including:
- Phoenix being banned from speaking at departmental meetings about being treated in detrimental ways because of her gender-critical beliefs.
- “Silence and lack of praise” when she obtained a $1m grant.
- OU failing to act to remove an open letter, signed by 368 colleagues, which called for the disaffiliation of the GCRN and labelled it “transphobic”.
- OU also failing to protect Phoenix when a similar statement was published on the OU website by the wellbeing, education and language studies faculty/reproduction, sexualities and sexual health research group.
- Tweets and retweets about the subject by OU employees.
Following the judgment, Phoenix, who resigned from the OU in December 2021, said: “I am delighted that the tribunal found in my favour. It was an exceptionally painful part of my career but I am glad for the win.
“Universities must act to protect their gender-critical staff. As the tribunal agreed, accusations of transphobia just because someone holds gender-critical views, and organising and publishing open letters with the intent of creating a hostile environment, are unlawful forms of harassment.
“Academics and universities must now, surely, recognise their responsibilities towards promoting diversity of viewpoints and tolerance of alternative views."
Tim Blackman, vice chancellor of the OU, said: “This judgment made for difficult reading for all of us. In several areas we fell very short. We apologise unreservedly to Professor Phoenix for the hurt and distress this has caused.
“This is not The Open University we want to be.”
He added: “We are sorry that this has been a painful episode for many colleagues. Research and academic debate are the lifeblood of universities.
“They are not at odds with inclusion and we will find a path that encourages diversity of thought and views in the inclusive environment we all want to see at the OU.”
Tribunal background
Phoenix is a professor of criminology who was appointed criminology chair at The Open University in 2016.
The tribunal summarised Phoenix’s beliefs, saying: “The claimant believes in the immutability and importance of biological sex, which comes from the fact that being female is something the claimant has always believed and is core to who she is.
“The claimant believes that biological sex is real, that it is important, that a person cannot change their biological sex and that sex is not to be conflated with gender identity.”
The tribunal heard that, in June 2019, The Sunday Times published a letter signed by Phoenix and other academics registering “disquiet over a perceived inappropriately close relationship between the LGBTQ+ charity Stonewall and UK universities”.
There was a backlash among her colleagues, with senior lecturer Deborah Drake calling her views “problematic and scary” and another staff member demanding she be punished.
In October 2019 Westmarland reduced Phoenix to tears when she raised her gender-critical views in a meeting. “Prof Westmarland said to [Prof Phoenix] that ‘having you in the department was like having a racist uncle at the Christmas dinner table’,” the tribunal found. “Prof Westmarland was effectively telling [her] off for expressing her gender-critical beliefs.”
On 16 June 2021, Phoenix launched the OU GCRN with two colleagues with similar views. “[She] believes it was important to create and protect a space for gender-critical research because the theoretical perspective that sex is a social construct that is mutable is sometimes presented as truth and [she] believes that others should be free to challenge that perspective without censure,” the tribunal heard.
It provoked some anger. A group of colleagues wrote an open letter calling on the OU to withdraw support for the group. The letter said: “We do not believe that freedom of speech or academic freedom should come at the expense of marginalised groups such as those possessing protected characteristics under the law.
“Gender-critical feminism is a strand of thought and a belief that is fundamentally hostile to the rights of trans, non-binary and genderqueer people.”
The tribunal heard Phoenix was then subjected to a series of tweets and retweets from colleagues, some of which described her as transphobic.
The tribunal heard that by June 2021 she was working in a “hostile environment”.
On 24 June 2021, Blackman posted a statement on the intranet. The tribunal said it referred to “strength of views and level of distress on all sides connected with a new academic initiative, the Gender Critical Research Network”.
It added: “The establishment of this network, based on critical scholarship about sex and gender, has caused hurt and a feeling of being abandoned among our trans, non-binary and gender non-conforming staff and students. It has also distressed many others in the wider OU community. This, and the wellbeing of all colleagues, greatly concerns me.”
The tribunal noted that there was no specific mention of any distress felt by Phoenix and her fellow GCRN members.
In November 2021, Blackman published an updated statement on the intranet, but there was “nothing in this statement that referred to the messages and social media publications that the claimant and the GCRN were subjected to”, the panel said.
In December 2021 Phoenix resigned, claiming she felt like a “pariah”.
Tribunal’s comments
“We conclude that the claimant was constructively unfairly dismissed under section 98 of the ERA. We consider that the reason for dismissal was the repudiatory breaches of the implied terms of trust and confidence and the duty to provide a suitable working environment,” the tribunal said.
“The claimant resigned because the [November 2021] vice chancellor’s statement failed to mention the public campaign against the claimant as part of the GCRN or condemn it, but only spoke of concern for those who found the GCRN work challenging.”
They said it was “the last straw” and triggered Phoenix’s resignation.
“The respondent failed to protect the claimant because they did not want to be seen to give any kind of support to academics with gender-critical beliefs, including the claimant,” the tribunal continued.
“We find that the claimant was working in a stressful atmosphere, subject to a negative campaign against her and the GCRN and not getting the support she wanted from the respondent.
“The claimant was experiencing sleepless nights, struggling with bad dreams and intrusive thoughts and struggling with symptoms of PTSD in the last six months of her employment.”
Expert comment: the ruling
Phoenix’s case follows those of barrister Allison Bailey and researcher Maya Forstater, who obtained a landmark judgment in 2021 that her gender-critical beliefs were a protected philosophical belief under the Equality Act.
Gender-critical feminists believe sex is biological and cannot be changed, while trans rights activists say gender identity should be given priority in terms of law making and policy.
Workplace disputes have resulted in a number of employment tribunals, including this latest one between Phoenix and the OU and, earlier this month, the case of Rachel Meade.
The social worker was employed by Westminster City Council in 2020 when Social Work England (SWE) received a complaint about gender-critical posts she had shared and liked on Facebook.
SWE investigated and formally sanctioned Meade, then the council suspended her on charges of gross misconduct before handing her a final written warning.
The tribunal heard that the case was delayed for a year, which it ruled constituted harassment. It also said her Facebook activity and other communications fell within her protected rights for freedom of thought and belief.
Commenting on Phoenix v OU, Yvonne Gallagher, employment lawyer at Harbottle & Lewis, said: “This is another in a string of recent tribunal cases that have found in favour of individuals who have been subjected to detriment for expressing so-called gender-critical views; ie, the assertion that sex is real and immutable and cannot be changed.
“Such beliefs were held by the EAT in the case of Forstater v CGD Europe to amount to protected beliefs for the purposes of the Equality Act.
“The case serves as a very clear reminder that individuals who hold protected beliefs are protected under the Equality Act from unlawful discrimination arising because of those beliefs.”
Elizabeth McGlone, partner and solicitor at didlaw, said: “This case, as with others of the same ilk/content/context emphasises again that holding a gender-critical belief is protected under the Equality Act 2010 as is its manifestation, as long as it does not go against the caveats applied by both articles 9 and 10 of the European Convention.”
She added: “Any manifestation of a belief has to be tempered with ensuring it is not deemed to be harassment of others.
“The very act of holding and manifesting these beliefs is not in itself harassment and can only be determined as such if it meets the test in section 26 of the Equality Act 2010.”
Sarah Begley, solicitor at Wilkes, said: “Professor Phoenix holds protected gender-critical beliefs. In this case the OU, fearful of being seen to be agreeing with or supporting her beliefs (and research group), failed to protect her from serious acts of discrimination and harassment (including victimisation after she was constructively unfairly dismissed). In fact, they supported action against her.
“Employers should be alert to the fact that a worker cannot be bullied or punished for holding so-called gender-critical views. Professor Phoenix’s view was valid and was not the same as transphobia.”
Stonewall declined to provide a formal statement as it was not directly involved with the case; however, it did say the case “does not change the fact that every employer is required by the Equality Act to prevent bullying and harassment on the basis of nine protected characteristics, including sexual orientation, gender reassignment or philosophical beliefs”.
Expert comment: lessons for employers
McGlone said there were lessons to learn from this and other similar judgments. “Employers have to be mindful of all rights and protected characteristics within the workplace and need to work hard to ensure a reasonable and fair balancing of rights,” she said.
“Social media can be a source of malaise for employers and employees should be reminded of their obligations in respect of not bringing their employer into disrepute on social media, which in turn encompasses the right to a private life alongside the need to ensure colleagues are not subjected to harassment and vitriol by colleagues online.”
Gallagher agreed, saying: “Disagreement with the belief, no matter how strongly felt, cannot justify detrimental conduct and employers will face cost and liability if they do not take steps to prevent such discrimination.
“This case was heard over a 15-day period and was both well attended and widely publicised and 19 witnesses gave evidence on behalf of the respondent.
“This perhaps provides an indication of the time and disruption cost to employers that find themselves faced with such a claim.”
Ian Jones, director and principal solicitor at Spencer Shaw, said: “The case illustrates what an emotional subject discrimination can be. Unfortunately, emotional responses or reactions rarely serve anyone well in employment matters.
“The right to hold views, no matter how unpopular, must be treated with respect and employers should be conscious of their responsibilities to all of their employees.
“Proper procedures can be vital to help those dealing with disputes to apply a level of objectivity, but they must be followed.”
Further resources on equality, diversity and inclusion are available on the CIPD website