Discussing Controversial Topics at Work – How to Protect Your Business if Employees Cross the Line

Whether an employer had taken all reasonable steps to prevent the potential harassment of an employee as a result of her gender critical beliefs was considered by the Employment Tribunal in the case of Fahmy v Arts Council England.

Facts

Ms Fahmy worked for Arts Council England (ACE). ACE created a fund to support creative and cultural activities. The fund made an award to the LGB Alliance but later suspended the grant following accusations of transphobia against the LGB Alliance.

ACE held a Teams call with 400 of its 700 staff members to discuss the decision to suspend the funding. Ms Fahmy holds gender-critical views, in that she believes that trans women are not women and trans men are not men. Ms Fahmy voiced her opinion during the teams call and queried how gender critical views were protected at ACE. Others in the call made comments criticising Ms Fahmy’s views and called her position ‘extremely disappointing’.

Following that, a colleague ‘SB’ sent an all-staff email encouraging staff to sign a petition to raise a formal grievance about colleagues who had expressed ‘clear, homophobic, anti-trans views’. Several very critical comments were left comparing gender critical beliefs to racism or sexism and one commenter described the LGB Alliance as ‘a glorified hate group’.

Ms Fahmy’s line manager emailed the Respondent’s CEO the following day raising concerns about the petition and comments as they were clearly directed at Ms Fahmy. The petition was taken down after 26 hours, SB was suspended and disciplinary action taken against two other commenters.

Ms Fahmy brought a claim alleging harassment due to her beliefs. It was accepted that her gender-critical beliefs were protected under the Equality Act 2010 and the Tribunal stated that it had been unwise of Mr Mellor, the meeting chair, to express his personal views on the topic which had started the debate during the call. However, the Teams meeting itself did not constitute harassment as Ms Fahmy had chosen to enter into a debate on a controversial topic and she had said she did not feel ‘bruised or isolated’ by the comments during the call. The petition and associated comments which followed were found to constitute harassment.

Comment

Debates of this nature will provoke strong opinions and could upset employees on both sides of the debate. Employees holding gender critical beliefs are protected from harassment under the Equality Act, as are employees who find gender-critical views offensive. It is important that employers are alert to the need to balance the rights of employees.

Although the Respondent in this instance took steps to try to avoid vicarious liability by taking disciplinary action against those involved, its defence failed for several reasons:

• The Respondent’s dignity at work policy was out of date. It had last been updated in 2019;
• The dignity at work policy did not set out ‘sex’ or ‘belief’ as protected characteristics under the Equality Act 2010;
• ACE had not yet updated its equality training to include belief discrimination.

For those reasons, the Respondent was found vicariously liable for the actions of its employees as it had not taken all reasonable steps to prevent the harassment. Employers should consider the following to manage the risk of vicarious liability:

• ensure diversity and inclusion and dignity at work policies are kept up to date;
• deliver up to date equality training to staff and ensure this is refreshed regularly; and
• respond quickly and fairly to any allegations of harassment or discrimination.

For advice on diversity policies, staff inclusion, equality training or harassment, speak to a member of our Employment Team who will be happy to advise.