It is unlawful under the Equality Act 2010 to discriminate against employees because of their philosophical beliefs. The test for a philosophical belief was established in the 2009 case of Grainger plc v Nicholson:
- The belief must be genuinely held.
- It must be a belief and not simply an opinion or viewpoint.
- It must concern a weighty and substantial aspect of human life and behaviour.
- It must have sufficient cogency, seriousness, cohesion, and importance.
- It must also be worthy of respect in a democratic society, not conflict with the fundamental rights of others, and not incompatible with human dignity.
Case law has established that gender-critical beliefs can meet these five criteria and therefore be protected under the Equality Act. This protection may be lost if employees manifest their beliefs inappropriately and in a way that adversely impacts the rights of others. In the recent case of Orwin v East Riding of Yorkshire Council, an Employment Tribunal held that there was no philosophical belief discrimination where an employee was dismissed for using deliberately provocative pronouns in his email signature because he disagreed with gender self-identification.
The Chief Executive of East Riding of Yorkshire Council emailed all employees inviting them to consider adding pronouns to their email signature if they chose to do so, stating that she was keen to ensure all staff knew they would be supported in their choice. She also attached links to the Council’s Equality, Diversity, and Inclusion Policy and to further information on ‘Why you may choose to use pronouns.’ Mr Orwin has strong gender-critical beliefs and disagrees with gender self-identification. He objected to the new policy, arguing that including pronouns in an email signature was ‘a political gesture designed to intimidate anyone who does not embrace the contested ideology of gender identity.’ In protest at the Council’s policy, Mr Orwin therefore changed his own email footer to state ‘XYChromosomeGuy/AdultHumanMale.’ Following attempts to reach a resolution, he was dismissed for failure to comply with management instructions to remove the footer.
Mr Orwin brought claims of direct discrimination on grounds of philosophical belief, unfair dismissal, and wrongful dismissal. All these claims have been dismissed by the Employment Tribunal.
The Tribunal accepted that Mr Orwin’s gender-critical beliefs satisfied each of the Grainger criteria and therefore amounted to a protected belief. However, it ruled that Mr Orwin had not been dismissed because of those beliefs, but because of the unacceptable way he had manifested them. The wording of his email signature was a deliberately provocative act of protest to try to persuade the Council to change its policy and did not have a sufficiently close and direct link to his beliefs. The Tribunal also took into account the risk of reputational damage to the Council, the impact on its service users, and its attempts to engage with Mr Orwin to reach a mutually acceptable solution. It was clear in this case that Mr Orwin’s actions also amounted to gross misconduct.
This case illustrates that employees whose actions are motivated or influenced by their philosophical or religious belief may not be protected under discrimination law if they manifest their belief inappropriately. For the act to be protected, there must be a close causal link between the employee’s act and the belief. The Tribunal in this case was also critical of the way the Council had implemented its own policy, highlighting the importance of ensuring that equality, diversity, and inclusion policies are properly and consistently communicated and enforced.
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