Employment law update – Further Gender Critical Beliefs Case

A claim has succeeded at Employment Tribunal against the Open University (OU) brought by a former Professor who worked for the OU, for direct discrimination, harassment, victimisation and constructive dismissal, all related to her gender critical beliefs. The Tribunal found that her views, including that a person cannot change their biological sex and that sex is not to be conflated with gender identity, satisfied the relevant legal tests laid down in the previous case of Grainger and were protected under the Equality Act 2010 as a philosophical belief.

While this is only a Tribunal decision and therefore not binding on any other Court or Tribunal, it follows a line of cases in which it has been found that gender critical beliefs are a philosophical belief and have protection under the Equality Act 2010. It serves as a reminder that employers require to carry out a difficult balancing act between the rights of people holding such beliefs and their entitlement to manifest them in a non-discriminatory manner with the rights of any trans employees.

The background to the claim was that Professor Phoenix (PP) made her gender critical views known by co-signing a letter to the Sunday Times in 2019. Thereafter she was harassed and discriminated against by colleagues, including one example where the deputy head of her department likened her to the “racist uncle at the Christmas dinner table”. In 2021 she and others established an academic research group “Gender Critical Research Network” (“GCRN”) which promoted research into sex, gender and sexuality from the gender critical perspective.

360 colleagues then signed an open letter objecting to the GCRN and calling for it to be closed down, as it was hostile and harmful to the trans community. PP then raised a grievance of bullying and harassment, citing the “incorrect” allegations that she was hostile to trans rights and also raising damage to her professional reputation and mental health. She received death threats and began to suffer symptoms of PTSD and stress. Six months after the launch of the GCRN and following a statement being issued by the Vice Chancellor of the OU which failed to condemn the campaign against her, she resigned.

The Tribunal found that PP was entitled to exercise her right to manifest her beliefs by setting up and participating in GCRN, and that the publication of the open letter by her colleagues encouraging adverse behaviour by others, amounted to harassment on the grounds of her philosophical beliefs. Although the University did not disaffiliate the GCRN, it didn’t do enough to protect PP from harm because it was afraid of being seen to support gender critical beliefs. Specifically it failed to produce an outcome for her grievance while she was still employed and refused to take down certain statements published online. In addition, the decision to terminate the grievance process after PP resigned was post-employment victimisation.

The Tribunal also found that the University had committed repudiatory breaches of the implied contractual terms of the duty to provide a suitable working environment and of trust and confidence which amounted to a constructive and unfair dismissal.

Please contact a member of the Legal & HR Team if you need any advice in this tricky area.