Phoenix v The Open University [2024]
Decision Number: Case No: 3322700/2021 Legal Body: Employment Tribunal (England & Wales)
Published on: 01/02/2024
Issues Covered:
Article Authors The main content of this article was provided by the following authors.
Jason Elliott BL Barrister & Lecturer of Law, Ulster University
Jason Elliott BL Barrister & Lecturer of Law, Ulster University
Jason elliott new
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Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Background

Background: 

The claimant was employed by the respondent as a Professor from August 2016 until December 2021The issue leading to the case arose from the claimant’s gender critical beliefsThe claimant asserts that she was subject to discrimination and harassment as a result of those beliefs and that she was not supported leading to resignation and a claim for constructive unfair dismissal.  

The claimant established the Gender Critical Research Network at the respondent which was a research group focusing on the importance of sexed bodies in different disciplinesThe claimant was met with a hostile campaign calling for the research group to be disaffiliated from the respondentSome of the allegations were baseless such as those relating to transphobia as well as some allegations that the research cluster was putting lives at riskThe claimant was also compared to a ‘racist uncle’ and her Head of Department advised her not to speak about her research within the Department.  

Outcome: 

The Tribunal found that the claimant was successful in her claim for direct discrimination based upon the gender critical beliefs held by the claimantThis was on the basis that there was insufficient protection given to the beliefs genuinely held by the claimant and that those beliefs were not harming othersAdditionally, it was found that the treatment suffered and the lack of protection resulted in it being the ‘last straw’ leading to the resignation coming as a result of the repudiatory breach of the contract.   There will be a remedies hearing to determine the level of compensation.   

Practical Guidance for Employers: 

This case had a complex factual background with many separate allegations (too many to mention) being made.   The key point to be taken is the protection that can be given to those with gender critical beliefs and where those beliefs are not harming others then there should be sufficient protection in being able to have those viewsFailing to give adequate protection can lead to issues as seen here with discrimination and constructive dismissal          

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 01/02/2024