An interesting case for employers, politicians, and society alike – judgment was handed down last week in the case of Maya Forstater v CGD Europe and others. We reported on an earlier stage of this case.
Maya Forstater, who had been a researcher at the Center for Global Development (‘CGD’), was dismissed after she stated her gender-critical views on her private Twitter account. Ms Forstater posted that biological sex was a material reality and should not be confused with gender identity.
After staff reported that the tweets were transphobic, CGD investigated and stopped offering Ms Forstater consultancy work and did not renew her visiting fellowship contract. Ms Forstater brought a claim to the Employment Tribunal for discrimination on the basis of her philosophical belief.
The Equality Act 2010 provides that it is unlawful to discriminate against someone because of a protected characteristic. Protected characteristics include religion and belief, gender reassignment and sex. However, by their very nature, some of these protected characteristics conflict. This means the area becomes very challenging for employers.
In the initial 2019 employment tribunal hearing where Ms Forstater brought her case, the Judge dismissed her claim. He described her views as “absolutist” and “not worthy of respect in a democratic society”, which is a key component of the case law that has arisen in support of the definition of a “belief” under the Equality Act. However, on appeal, the Judge found that Ms Forstater’s “gender-critical beliefs” were protected under the Equality Act as the belief that biological sex is real and important was a genuine philosophical position.
Having ruled that Ms Forstater’s belief does indeed fall within the definition of “belief” under the Equality Act, the next stage was to decide whether Ms Forstater had been treated less favourably by CGD on these grounds. The Central London Employment Tribunal found that Ms Forstater’s protected beliefs had been a significant element behind the respondent’s actions. In particular, the tribunal found that there had been:
direct discrimination in the decision not to offer the claimant an employment contract,
direct discrimination in the decision not to renew the claimant’s visiting fellowship, and
(against the first and second respondents) victimisation regarding the removal of the claimant’s profile from CGD’s website.
Ms Forstater was awarded over £100,000 in damages comprising (1) £25,000 for injury to feelings, (2) an additional sum of £2,000 regarding aggravated damages, (3) £14,000 for loss of earnings, (4) £50,000 for loss of chance/ loss of earning capacity, and (5) interest of £14,778.47. This is a significant level of compensation, bearing in mind that the average award for compensation for belief discrimination in 2021/2022 was £25,968.
Ms Forstater was also awarded damages to reflect injury to feelings at the top of the range of the prescribed bands for such awards.
In this case, awards for loss of chance or loss of earning capacity were significant. Claimants are compensated for loss of chance in cases where they lost the opportunity to pursue a course of action that would have led to a ‘chance’ of achieving some (usually financial) benefit. The tribunal combined the loss of a chance of employment and the loss of earning capacity. It awarded a sum that reflected all the possibilities, uncertainties as to when the possibilities might have occurred, and the financial consequences of those possibilities happening or not happening. The tribunal awarded £50,000 – a sum equal to about one year’s net earnings from Ms Forstater’s current work. This amount is significant, as the tribunal assessed the loss of a chance of employment as certain: the £50,000 award roughly matched earnings Ms Forstater would lose from one lost year of her current work.
An award was additionally made for aggravated damages. These compensate a claimant for additional distress or injury to feelings due to the way the defendant committed the alleged wrong against the claimant. An award was made here as the language the respondent used in press releases and in a letter from its staff members which the respondent shared with the media was found to exemplify oppressive and high-handed conduct.
What does this mean for employers?
This is a decision of an employment tribunal, so it is not binding on other tribunals or higher courts. It does, however, demonstrate the difficulty that employers face: some beliefs are capable of protection under the Equality Act, even if others might find those beliefs offensive. This case demonstrates that employers should ensure that they are fully aware of what beliefs are protected under the Equality Act and address what they should do if those rights and opinions conflict.
In this case, aggravated damages were awarded because of public statements made by CGD’s leaders. Employers should consequently carefully consider how they phrase any public statement they choose to make about employment tribunal decisions. They should also exercise caution regarding whom they share information with regarding the views of their workforce on such decisions.
In light of this judgment, all employers should ensure that they review their policies and ED&I strategy to ensure that their approach to equality and diversity is legally compliant and not simply reactionary.
Can we help?
Our specialist ED&I team can assist with ED&I audits, analysis, training, and review of workplace equality policies, including recommendations and solutions. Please contact Claire Taylor-Evans at [email protected] today for more information.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.