Religion or belief (including philosophical belief) is a protected characteristic under the Equality Act 2010 (EqA 2010).
In the case of Grainger v Nicholson, the Employment Appeal Tribunal (EAT) laid down the following criteria for establishing the types of belief that will be protected under the EqA 2010 framework (the Grainger criteria):
This decision concerned the final Grainger criterion.
Ms Forstater was engaged by Center for Global Development (CGD) as a 'visiting fellow', however her contract was not renewed after she posted tweets about gender identity issues on social media which offended a number of transgender people, as well as some of her colleagues. Ms Forstater brought a number of claims in the employment tribunal including that the non-renewal of her contract amounted to discrimination on grounds of her philosophical belief that sex is immutable and should not be conflated with gender identity issues.
In considering whether Ms Forstater's philosophical belief was offered protection under the EqA 2010 as a preliminary issue, the tribunal considered the Grainger criteria.
The tribunal held that Ms Forstater's belief, whereby she would "refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment" was one that was not worthy of respect in a democratic society and therefore did not satisfy the last Grainger criterion.
Ms Forstater appealed to the EAT.
The EAT held that the tribunal had erred in its application of the Grainger criteria. Taking account of the European Convention of Human Rights, the EAT held that a philosophical belief would only fail to satisfy the final criteria of the Grainger test if it was the kind of belief akin to Nazism or totalitarianism, or that espoused violence and hatred in the gravest of forms.
Therefore, even though Ms Forstater's beliefs may be offensive to some individuals, these beliefs would still be afforded protection under the EqA 2010.
It is important to note that the EAT made clear that:
This decision concerned only the preliminary issue of whether Ms Forstater's belief qualified for protection, and the merits of her claim are yet to be determined. The EAT's decision in this case confirms that all but the most extreme beliefs will satisfy the 'worthy of respect in a democratic society' aspect of the Grainger test. Employers should therefore take steps to mitigate the risk of harassment or discrimination in the workplace, for which they may be vicariously liable, including: