A case exploring the delicate balance between the expression and manifestation of philosophical beliefs
Was a ‘provocative’ email signature an inappropriate manifestation of gender critical beliefs?
Yes, said the Employment Tribunal (ET) in the case of Orwin v East Riding of Yorkshire Council.
Background
In this case, Mr Orwin (the claimant) worked as an ICT Project Officer for East Riding of Yorkshire Council (the employer).
The employer introduced a new policy which gave staff the option of adding their preferred pronouns to their email signature. The purpose of the policy was to promote inclusion of people who identify their gender in a way that is not necessarily consistent with their biological sex.
The policy didn’t provide a list of which pronouns the employer considered to be acceptable, and the policy wasn’t compulsory i.e. individuals could choose not to add any pronouns to their signature.
Mr Orwin objected to his employer’s policy, considering it was more concerned with political ideology rather than equality, and added “XY-chromosome-guy/adult-human-male” to his email footer. He also asked to speak with someone senior about the policy and declined the option of simply not adding any pronouns to his signature.
The employer found Mr Orwin’s addition to his email signature inappropriate and believed it could be offensive to others. While Mr Orwin had temporarily removed it from his signature while discussions with his employer were taking place, he reinstated and continued to use it despite receiving multiple written instructions from his employer to remove it.
The employer suspended Mr Orwin and ultimately terminated his employment. Mr Orwin raised claims of unfair dismissal and direct discrimination based on his philosophical beliefs.
Law
From case law over recent years, it has been established that genuinely holding gender critical beliefs, such as those held by Mr Owin, can be worthy of protection under the Equality Act 2010.
It has also been established that where an employer disciplines or dismisses an employee for the way in which they manifest their philosophical beliefs, it can amount to unlawful discrimination under the Equality Act.
The key questions for the ET in this case were whether:
(a) the claimant’s beliefs qualified for protection;
(b) he had manifested those beliefs in an appropriate way; and
(c) the decision to dismiss was unfair and amounted to unlawful discrimination because of his beliefs.
Decision
The ET in this case dismissed all of Mr Orwin’s claims. While he was successful in arguing that his beliefs qualified for protection under the Equality Act, the ET held that the employer had acted because of the inappropriate manifestation of Mr Orwin’s beliefs.
The ET found that Mr Orwin’s chosen email signature was a deliberately provocative act which mocked the idea of self-identification, taking the manifestation of his beliefs beyond the protections for freedom of thought and freedom of expression contained within the European Convention on Human Rights (which is incorporated into UK law in the Human Rights Act 1998).
Accordingly, the decision to dismiss was found to be fair and did not amount to direct discrimination.
Our view
Daniel Gorry, Partner in our Employment team, comments:
"While this case is a decision at ET level and not binding on other tribunals, it gives us further insight into the challenges that can arise in workplaces and of the delicate balance which can exist between the legitimate expression and manifestation of philosophical beliefs and the extent to which those beliefs could impact the beliefs and freedoms of others.
"Deciding what is and is not an appropriate manifestation of a philosophical belief can pose a real headache for employers seeking to promote and instil a culture of diversity and equality within the workforce while still respecting the range of viewpoints and beliefs that some of their employees may hold.
"We’d encourage any employers tackling such a situation to take advice given the complexities in this particular area of employment law."
