NO END TO TRANSGENDER RELATED CLAIMS IN SIGHT
The debate over “gender critical” views in the workplace continues to produce employment tribunal claims as more high-profile judgments continue to be handed down, with two more this week.
“XYChromosomeGuy/AdultHumanMale“ email signature ‘deliberately provocative’ and mocked gender self-identification
Firstly, Mr Orwin, a council worker who took his former employer, East Riding of Yorkshire Council, to tribunal has lost his claim for discrimination on the grounds of his philosophical belief after he was dismissed for refusing to remove “XYChromosomeGuy/AdultHumanMale” from his email signature.
Mr Orwin was successful in demonstrating that his belief that sex is biologically immutable amounted to a valid philosophical belief, which gave him protection under section 10, Equality Act 2010. However, he was unsuccessful in demonstrating that he was dismissed because of that belief. Rather, the tribunal concluded he was dismissed because of his refusal to remove the provocative signature which was unacceptable to the Council and a refusal of a reasonable management instruction.
The background to the claim arose when the Council invited employees to add their preferred pronouns to their email signature, citing examples of “she/her, he/him, they/their and ze/hir”, but also giving employees the option of selecting their own “other” pronouns.
“This case demonstrates the importance of clear, well-thought through policies and underpins the need for employers to consider the possible thoughts and feelings of all employees when trying to introduce trans-supportive policies.”
Mr Orwin opposed this suggestion, claiming “it is my firm belief that announcing pronouns in emails or before meetings is a political gesture designed to intimidate anyone who does not embrace the contested ideology of gender identity.”
After being instructed to remove the signature by bosses, and refusing, Mr Orwin was suspended, pending a disciplinary investigation for failing to follow management instructions. He was ultimately dismissed and he did not appeal the decision.
Ultimately, the tribunal panel concluded that it was the Council who had first introduced the idea of pronouns but their policy implementation (designed to address their public sector duty) was “poorly thought through”. Further, albeit mistakes were made, they did not dismiss Mr Orwin because he held the views he did, but because he failed to follow the instruction to remove his signature which was a breach of his employment contract. The tribunal were keen to point out, “It is an obvious implied term of contracts of employment that employees will follow reasonable management instructions. That term is important – it goes to the heart of the employment relationship.”
Mr Orwin’s case is another example of “gender critical” beliefs attracting protection as a philosophical belief (although this will always be considered on a case-by-case basis) and the issues that can arise when pitting this against the rights of transgender employees (who are also protected) in the workplace. This case demonstrates the importance of clear, well-thought through policies and underpins the need for employers to consider the possible thoughts and feelings of all employees when trying to introduce trans-supportive policies. Notably, holding these beliefs does not mean employers are unable to take action in circumstances where employees use those beliefs to act in a way which is unreasonable and in breach of their contractual obligations.
Source:
https://assets.publishing.service.gov.uk/media/66952029a3c2a28abb50cf74/Mr_J_Orwin_v_East_Riding_of_Yorkshire_Council_-_6000146-2022_-_Final.pdf
No stroll in the garden - EAT sides with Stonewall
In other news, Allison Bailey (the former Garden Court Chambers barrister who sued her Chambers and Stonewall in a long-running dispute over her “gender critical” beliefs) has lost her latest appeal against Stonewall. The original issues arose in 2019 when Stonewall contacted Garden Court Chambers alleging that Allison Bailey, a woman who is a lesbian, had made ‘transphobic’ statements on what was then Twitter.
We do not yet have a judgment but Bailey posted on her website and X (formerly Twitter), “I will consider the judgment with my legal team, but my initial view is that there are five key aspects of the judgment which are of concern.”
Bailey, who was successful in previous claims against her Chambers, has continued to pursue Stonewall (who she lost against). It appears the dispute is not over, and we await the next course of action.
Source:
https://allisonbailey.co.uk/updates/update-14-the-stonewall-judgment/