Protection of philosophical beliefs at work

Tribunal finds University Professor was discriminated against because of gender critical philosophical beliefs

An Employment Tribunal recently found that an Open University professor had been discriminated against, harassed, and victimised because of her gender critical views which were held to be a protected belief.   

The Law

Under the Equality Act 2010, philosophical beliefs, as well as religious beliefs, are protected characteristics meaning that an employee who holds a philosophical belief is free to practice their belief free from discrimination.

In the case of Grainger plc and others v Nicholson [2010] the Employment Appeal Tribunal defined that a philosophical belief must:

1. be genuinely held;
2. be a belief and not an opinion or viewpoint, based on the present state of information available;
3. be a belief as to a weighty and substantial aspect of human life and behaviour;
4. attain a certain level of cogency, seriousness, cohesion and importance;
5. be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.

Beliefs which have previously been held to constitute a philosophical belief are atheism and humanism.

The Equality Act 2010 provides various protection from discrimination related to religion or belief.  This includes protection from discrimination because of religion or belief (direct discrimination) and protection from harassment.   The latter is defined in the Act as occurring “where one party engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating the other party’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  

The facts

Professor Joanna Phoenix was employed by the Open University (OU) as Chair of Criminology and had spent over 30 years in academia.   

In July 2018, a consultation was opened by the government on reforming the Gender Recognition Act 2004 and the process for acquiring a gender recognition certificate.  The consultation invited public debate on the proposal by Stonewall (a national LGBTQ+ charity) that the government remove the requirement to provide medical evidence in order to obtain a legal change of gender.  The charity’s proposal was that the definition of gender reassignment be replaced with a self-determination process of legal gender recognition.    

In October 2018, the Guardian newspaper published a letter signed by Professor Phoenix and 53 other academics in which concerns were raised about introducing self-identification for gender reassignment.  

This was the first time that Professor Phoenix made public her gender critical views.  Her views were that biological sex was real and important, that a person cannot change their biological sex and that sex was not to be conflated with gender identity.  

After the publication of the letter, the attitude of colleagues began to change towards Professor Phoenix and she began to feel increasingly isolated.  Many of her colleagues disagreed with her beliefs and began to complain amongst each other about Professor Phoenix.    It was not, however, until after a conference was cancelled, in which Professor Phoenix was due to speak, that matters escalated.  

The conference was cancelled by organisers at the OU whose reason for cancelling, was that “the event had been hijacked into being about one kind of controversy, transgender issues, prison reform, CCJS, and so on”.  The organisers, it was later concluded by the Tribunal, wanted to avoid association with the gender critical views of one of the speakers and feared the reputational risk that this would bring the OU. 

Professor Phoenix objected to the cancellation which she said was a breach of academic freedom.  She subsequently resigned as an organiser of the conference. 

After the cancellation, the Professor said that she knew there would be a push against academics speaking out against gender self-identity. 

Subsequently, various incidents occurred which caused Professor Phoenix to feel she was being discriminated against and harassed because of her gender critical beliefs.    Her working environment became increasingly toxic and she was blamed for causing divisiveness in the department.   In October 2019, she was told by one colleague that having her in the department was like having “a racist uncle at the Christmas dinner table”.    

In June 2021, Professor Phoenix and 5 others launched the Open University Gender Critical Research Network (GCRN).    The group was not an activist group but an academic research group that promoted research into sex, gender and sexualities from a gender critical perspective.  Following the launch, several students complained about the GCRN and a podcast on its website (featuring Professor Phoenix), alleging that it was offensive and trans-hostile.    

Following the launch of the GCRN, a document called ‘Open Letter from OU staff – Response to the launch of the Gender Critical Research Network’ was published online.   The Open Letter had been signed by 368 OU staff members & postgraduate researchers and called for the Executive of the OU to withdraw its support and affiliation with the GCRN and to affirm its position as a trans inclusive employer.  

Professor Phoenix told the Tribunal that she was shocked by the letter and that it was personally and professionally humiliating to be publicly condemned by her colleagues in such a public way.

After the publication of the Open Letter, Professor Phoenix raised a formal grievance with the OU complaining of bullying and harassment on the grounds of her gender critical beliefs. Professor Phoenix said she was the victim of a targeted campaign of harassment and of false allegations that she was hostile to trans-rights.   She also told her employer she had received a death threat and was fearful for her safety and for the damage to her professional reputation and mental health caused by the Open Letter.

In December 2021, Professor Phoenix resigned, stating that her position had become untenable.  Her reasons for resignation included the OU’s delay in dealing with her grievance and the publication of a statement by the Vice Chancellor in November 2021 which failed to condemn the targeted campaign she had been subjected to. 

After her resignation, Professor Phoenix brought claims of constructive unfair dismissal, discrimination on the grounds of belief and victimisation against the OU. 

The decision

The Tribunal found that Professor Phoenix had been constructively unfairly dismissed on the grounds that the OU had breached the implied term of trust and confidence and the duty to provide a suitable working environment. 

In relation to Professor Phoenix’s claims of discrimination, the first question was whether her gender critical belief was a philosophical belief under the Equality Act 2010.    The Tribunal concluded that her belief – that sex is immutable and biological sex and gender identity are entirely different things – met the “Grainger” test for a protected belief.   

After finding that Professor Phoenix’s gender critical belief was a protected belief, the Tribunal went on to conclude that she had been subjected to harassment on the grounds of her belief on several occasions.  This included the incident when she was compared to a “racist uncle” by a colleague – a remark that the Tribunal concluded was intended to violate her dignity because inherent in the comment was an insult of being put in the same category as racists.  

The online publication of the Open Letter by Professor Phoenix’s colleagues also was concluded to constitute harassment.  The Tribunal said that the Open Letter painted Professor Phoenix as saying prejudicial statements against trans gender people when she did not and, by publishing that to the world, it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.  

It was also concluded that the failure of the University to protect Professor Phoenix from the attacks of her colleagues and to take down offensive statements that had been published constituted harassment. 

The Tribunal also upheld several of Professor Phoenix’s claims of direct discrimination on the grounds of her protected belief.   Importantly, the Tribunal also concluded that her constructive dismissal was not only unfair but was also discriminatory.   The Tribunal considered that the discriminatory conduct materially influenced the repudiatory breach.  The Tribunal found that the unlawful harassment of Professor Phoenix by her colleagues in publishing the Open Letter and other offensive materials amounted to a breach of the implied term of trust and confidence.   The Tribunal also found that the unlawful harassment committed by the Open University in failing to protect Professor Phoenix from the attacks by her colleagues constituted a failure to provide a suitable working environment.    The fact that the Tribunal believed the Open University’s motivation for not providing protection to Professor Phoenix was the fear of being seen to support her gender critical belief further supported its conclusion.

Comment

The case has attracted a lot of media attention because it concerns a subject on which many people have strong views.  From a legal perspective, however, the case highlights an interesting area of developing law and reminds us that there is potential for the range of subjects considered to be philosophical beliefs to become much broader in the future as societal norms and values change.   

You can read the full judgement here: https://assets.publishing.service.gov.uk/media/65ae82d58bbe95000e5eb1f7/Ms_J_Pheonix_v_The_Open_University_3322700.2021___other_FMH_Reserved_Judgment.pdf