A new case which has been heard in the Employment Tribunal has potentially far-reaching implications both for the Equality Act and for freedom of speech.

Under the Equality Act, a person is protected from discrimination as a result of their religious or philosophical belief.  What constitutes a philosophical belief is not strictly defined within the Equality Act, but in order to be protected, the following criteria must be met:

(i) The belief must be genuinely held.

(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, and compatible with human dignity and the fundamental rights of others

In the case of Forstater v CGD Europe & ors, in the Claimant, Ms Forstater expressed the view on Twitter that "there are two biological sexes in humans, and that it is not possible for a human being to change sex" in a discussion about proposed reforms to the Gender Recognition Act.  The tweets were posted to Ms Forstater's personal twitter account and were not linked with her employment.

However, complaints were raised with the Respondent, CGD, that some of her tweets were transphobic. Ms Forstater’s contract was not renewed, and she complained of discrimination on grounds of her belief.

At an early hearing, the tribunal found that the belief was genuinely held; it was a belief, not merely an opinion based on the present state of information; and was a belief as to a weighty and substantial aspect of human life and behaviour. The judge decided that the belief attained the necessary level of cogency and cohesion to form a belief capable of being protected by the Equality Act. 

However, the Judge decided that Ms Forstater's belief involved “misgendering” and was therefore incompatible with human dignity and the fundamental rights of others. Accordingly it could not be a protected belief under the Equality Act 2010 and the Claimant's claim for discrimination failed.

Should you have any queries about the issues raised in this article, or on any employment related matter, please contact our expert Arvin Sandhu by email or on 01494 893 542.