Beliefs may be protected, but provocative expression at work, especially via employer platforms, can justify disciplinary action if proportionate.

The Council introduced a new policy which invited staff to add pronouns to their email signature. The policy did not prescribe a list of acceptable pronouns, and individuals could also choose not to add any pronouns. The Claimant objected to the Council's policy on the basis that it promoted a political ideology of self-identification with which he disagreed. In protest against the policy, the Claimant added the words "XYchromosomeGuy/AdultHumanMale" to his email signature. Having refused numerous management instructions to remove the words, he was eventually dismissed.

The Claimant brought a claim of direct discrimination, unfair dismissal and wrongful dismissal in relation to his gender critical beliefs. The claimant's views, including that sex is biologically immutable and binary, satisfied the Grainger criteria and were protected under the Equality Act 2010.

Applying Higgs v Farmor's School, the Tribunal rejected the Claimant's argument that his dismissal was because of the legitimate manifestation or expression of his beliefs under Articles 9 and 10 of the European Convention on Human Rights (ECHR). The Tribunal found that the manifestation of the claimant's beliefs was not protected under the ECHR, as there was not a sufficiently close causal nexus between the email signature and the Claimant's gender critical beliefs. The email signature was a deliberately provocative act to mock the idea of gender self-identification rather than an expression of the Claimant's gender identity. Therefore, the Council's actions to dismiss him were in response to an inappropriate manifestation of the claimant's beliefs, rather than because he held gender critical beliefs, and its decision to dismiss was not direct discrimination.

When considering the proportionality of the Council's response, the tribunal noted that the Claimant had a public-facing role and was using the Council's resources and platform to be deliberately provocative. The risk of reputational damage and impact on potential service users was much higher than in cases where an employee has expressed views on social media. The email signature directly contradicted the Council's attempts at being inclusive in accordance with its public sector equality duty, although the tribunal noted that the email policy was "poorly thought through and badly executed".

Whilst the tribunal agreed that the belief itself could qualify for protection under the Equality Act 2010, it determined that the email signature was deliberately provocative. It also found on the evidence that the council had sought to use less intrusive approaches than dismissal by asking the claimant to remove his email signature and to discuss a form of wording that both parties would find acceptable. It was also relevant that the council was required to have regard to its public sector equality duties.
The tribunal therefore dismissed the claim, holding that the council did not discipline the claimant because of his protected belief, but rather because he acted inappropriately in his expression of that belief. The way in which these beliefs were expressed was objectionable, and in turn the council was permitted to discipline the employee

Whilst each case is fact specific, this case is a useful reminder to employers that individuals holding gender critical beliefs do not have free reign to express themselves as they wish and employers taking action against offensive behaviour is permissible provided that the decision-making is proportionate.

You can read the case in full here.