Inappropriate Manifestation of Beliefs

In the case of Orwin v East Riding of Yorkshire Council, an Employment Tribunal has held that the dismissal of a Claimant for the use of deliberately provocative pronouns was not discrimination.

Background

The Claimant worked for East Riding of Yorkshire Council (“the Council”) as an IT Officer from 2018. In April 2022, the Chief Executive of the Council sent an email to all employees inviting them to consider adding pronouns to their email signatures should they wish to do so.

The Claimant made his objections to this known as he disagreed with gender self-identification. In protest, the Claimant referred to his pronouns as “XYchromosomeGuy/AdultHumanMale.

Following requests from the Council the Claimant refused to remove the words from his signature and was later dismissed.

The Claimant brought a claim for unfair dismissal and direct discrimination on the basis of religion or belief.

The Law

Religion or belief is a protected characteristic under the Equality Act 2010.

The Employment Appeal Tribunal has previously held in Forstater v CGD Europe and others that a gender critical belief (e.g. sex is biological and immutable) can amount to a philosophical belief under section 10 of the Equality Act 2010.

Articles 9 and 10 of the European Convention on Human Rights protect the freedom of thought and freedom of expression, however, both rights can be qualified. Previous case law has held that these rights can be restricted to the extent necessary to protect the rights and freedoms of others.

Accordingly, while section 13 of the Equality Act 2010 prohibits direct discrimination “because of” an employee’s philosophical belief, the manifestation of that belief is not necessarily protected.

Decision

The Claimant’s discrimination claim was based on an argument that he was dismissed because of the legitimate manifestation or expression of his beliefs under Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights.

The Employment Tribunal held that there was not a sufficiently close causal nexus between the Claimant’s gender critical beliefs and the use of wording on the email signature (which he argued was the manifestation of his belief). The Employment Tribunal instead found that the wording on the email signature was an act of protest which was deliberately provocative to try and persuade the Council to change its policy – it was not done out of a need to adhere to the Claimant’s gender critical beliefs. The Employment Tribunal held that the Council had not dismissed the Claimant because of his philosophical belief and had not discriminated against him, instead it had dismissed him in response to the Claimant’s inappropriate manifestation of his beliefs.

The Employment Tribunal found that the Council had acted proportionately in taking the action that it did, noting the public sector equality duty the Council is bound by and its desire to provide a service for all members of the community it serves. In addition, as the Claimant came into contact with those outside of the Council there was a risk of reputational damage and the Council had tried to explore less intrusive approaches including exploring with the Claimant how he could express his opinions while limiting the risk of acting in an exclusionary way, but the Claimant refused this.

Comment

A genuinely held religion or belief can be a protected characteristic under the Equality Act 2020 but it is possible for a Respondent to successfully defend a direct discrimination claim on the basis that less favourable treatment was not because of the Claimant’s religion or belief itself but the inappropriate manifestation of it. While the Employment Tribunal was critical of the wording and execution of the policy the Council adopted, it did conclude that its aim of encouraging inclusion amongst staff and service users was genuine.

Case reference: Orwin v East Riding of Yorkshire Council ET/6000146/2022