It’s a mixed up, muddled up, shook up world?

At the start of 2020 (when a new virus affecting people in parts of China was hardly being covered in the news) I published a blog post on the issues of philosophical belief and how employers should consider issues relating to it, in the light of two high profile cases. on veganism and gender-critical beliefs.

The Employment Appeal Tribunal (EAT) has ruled today on the appeal in the gender-critical case. That case originally failed on the grounds that the claimant’s gender-critical beliefs could not count as a philosophical belief on the basis that they failed the 5th legal test, that a belief “must be worthy of respect in a democratic society and not be incompatible with human dignity or in conflict with the fundamental rights of others”

The EAT overturned this view, stating that a belief would only fail the 5th test if it was ‘akin to Nazism or totalitarianism’ or espousing violence and hatred ‘in the gravest of forms’; a belief that simply was ‘offensive, shocking or even disturbing to others…would not be excluded from the protection’.

This is a subject which results in much heated and vitriolic debate, particularly on social media platforms. The purpose of this post is not to discuss the merits of these views (or the decision itself) but to highlight to employers a key part of the judgement. The EAT was very clear and explicit that:

a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.


b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of {Equality Act] EqA will be for a tribunal to determine in a given case.


c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.


d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

The above points are taken directly from the judgement (which you can find here if you want to read it in full) – they are also evidence that court judgements aren’t always in impenetrable legalese! They are however a very useful reminder that discrimination, bullying or harassment are something which an employer is liable for regardless of whether the alleged harasser claims they are only doing so because they have a particular religious or philosophical belief.

It was only a joke!

“It was only a joke”

“I didn’t mean anything by it”

“Just our normal office banter”

“Do we have to be humourless in work now?”

Over the last 12 months, the issue of harassment has come to the forefront of business, with issues such as Harvey Weinstein, and the Presidents Club. Only this week,  business leader and TV personality Lord Sugar  got into hot water for issuing a (now deleted) tweet about Senegalese footballers. His response – that it was a misguided attempt at humour –  is a common one when individuals are confronted with inappropriate comments.  In fact, the comments above are the usual reaction when a complaint is made.

If you run or manage a small business, you may be faced by an allegation of harassment and you need to take it seriously.  Dismissing claims as merely ‘banter’ can be both expensive and damaging to your business reputation, as this car dealership found out this week.  Investigate all allegations properly and – as importantly –  make it clear that inappropriate comments are not acceptable.

It doesn’t matter if the comment was not intended to be offensive, or that you can’t see anything wrong with it – in law the main concern is the perception of the individual. This doesn’t mean that every instance of an ill-judged comment is necessarily racist or sexist – case law is very clear that “it is… important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase” – the point is that an employer must investigate a complaint properly.

And if you aren’t sure, take advice. There’s a world of difference between referring to a colleague as “The Producer” (because she is constantly telling her team that “she’ll put them in the picture”) and referring to her as “Sugar Tits”.

Humour is important in the workplace. Harassment isn’t. And remember, as I was once told by an Employment Lawyer, “Banter isn’t an excuse –  it’s an admission”. If you need more information, this piece may help you