Balance or Belief: How Should HR Manage the Gender Critical Debate?

The rise in tribunal cases presents a challenge for HR and diversity teams. How should they deal with contentious beliefs at work? In the recent case of social worker Rachel Meade, the judge ordered all managers, HR staff, triage staff and investigation staff in both Westminster City Council and Social Work England to receive training on freedom of expression and protected belief.

In recent years, the debate on sex and gender has become polarized, both on and off social media platforms. This has led to a rise in tribunal decisions related to these issues. As HR professionals, it’s crucial to understand these developments and respond appropriately.

The Rising Tide of Employment Tribunals

Over the past two years, there have been 14 tribunal decisions involving gender-critical beliefs. The most prominent of these was the case of Maya Forstater, who was awarded more than £100,000 in a case against the Center for Global Development. The organisation was found to have unlawfully discriminated against Forstater for expressing gender-critical views on her Twitter account.

The Forstater judgment has since been cited in numerous tribunals as a demonstration of how a genuinely held belief that sex is immutable can qualify for protection under the Equality Act.

The Challenges for HR

The rise in tribunal cases presents a challenge for HR and diversity teams. How should they deal with contentious beliefs at work? In the recent case of social worker Rachel Meade, the judge ordered all managers, HR staff, triage staff and investigation staff in both Westminster City Council and Social Work England to receive training on freedom of expression and protected belief.

This raises the question: should organisations be delivering training on this as standard? Rhys Wyborn, an employment lawyer at Shakespeare Martineau, suggests that employers can’t ignore this issue. He says, “The rise in claims like these shows that more and more beliefs are being deemed as worthy of protection under the Equality Act. And inevitably, if more beliefs and rights are protected, that raises the potential for those thought systems to come into conflict.”

Balancing Conflicting Rights

When it comes to the contentious debate over gender identity, employers need to think in terms of balancing conflicting rights. They should not view their role as protecting one group (those with the protected characteristic of gender reassignment) from discrimination by another (those with gender critical views).

According to barrister Andrew Rhodes of No5 Barristers’ Chambers, it could be worth employers establishing or reviewing policies on internal beliefs and expressions if they wish to avoid legal claims. A useful benchmark to understand what might and might not be covered by the Equality Act in such claims is to apply the Grainger criteria.

Training and Culture

Laura Clark, a senior associate in the employment team at law firm Knights, suggests that training can be a good opportunity to engage with employees in how to foster a non-discriminatory work culture. However, she advises that any training should be delivered in a safe and non-judgmental environment.

Jane Bradshaw-Jones, HR business partner at AdviserPlus, adds that managers should not forget they may have their own assumptions on these issues, and should put those aside. She says, “Training on unconscious bias is underutilised but can provide individuals with personal insight about how we make judgments about others and how to prevent discrimination.”

Looking Forward

From October this year, employers will have an obligation to prevent workers from harassment under the Worker Protection Act. Therefore, it’s important to remind staff of what’s acceptable.

That said, Anna Fletcher, an employment partner at Gowling, argues that the recent slew of decisions in gender-critical cases could in itself mean a decline in their frequency because it’s increasingly clear to employers that such beliefs are protected.

In conclusion, this particular battle in the culture war should be largely over. The law is clear that so-called ‘gender-critical’ beliefs are protected as is, in summary, their reasonable expression. Harassment continues to be outlawed, but as with nearly all cases about belief, the outcome will very much depend on the particular facts.

Stay tuned, to PropleManager.co.in for further updates on the evolving workplace paradigm.

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