Rape crisis centre employee subjected to discrimination and harassment for gender critical views
In the first instance decision of Adams v Edinburgh Rape Crisis Centre, a former employee of Edinburgh Rape Crisis Centre (ERCC) has succeeded in claims for discrimination and constructive dismissal after she was disciplined for manifesting her gender critical beliefs in a Scottish Tribunal.
In recent years, there has been an evolving body of case law on the manifestation of protected beliefs in an employment context. Within this body of case law, there has often been a focus on the tension between gender-critical beliefs and trans rights.
Background to the claim
Ms Adams, the claimant, worked for the ERCC. The ERCC had an occupational requirement of only recruiting women. It supports women, trans and non-binary people.
The claimant supports individuals who are trans and believes that trans people should be able to access the support of the ERCC. She nevertheless does not believe that gender identity is in all circumstances more important than sex. She believes that biological sex is real, important, immutable and not to be conflated with gender identity. In respect of survivors of sexual violence, she believes that effective support involves respecting whether they wish to engage with male or female support workers.
Prior to the events which gave rise to this claim, the ERCC appointed a trans woman CEO who did not hold a gender recognition certificate. The claimant was initially supportive of the appointment, but she became concerned about the ERCC's 'trans women are women' mantra and lack of willingness to engage with the fact that, in the claimant's view, the majority of service users would prefer to be supported by a biologically female support worker and may want to interact only with biologically female survivors in support groups.
Disciplinary and resignation
The claimant was disciplined for her suggested response to an email from a service user who was querying the gender of a colleague who had taken on a male name. The claimant had suggested a response confirming that the colleague had been born a woman but now identifies as non-binary. The claimant's colleague took offence at the claimant's proposed response. The CEO of the ERCC sent an email advising that the claimant had humiliated her colleague and that they would not be working together again. The email implied that the claimant was transphobic. The claimant's actions were subsequently held to be gross misconduct. The claimant resigned after a period of sick leave. She brought claims for discrimination, harassment and constructive dismissal.
Tribunal decision
The Tribunal upheld the claimant's claims of harassment. The claimant was subjected to unwanted conduct relating to her gender critical beliefs which had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The Tribunal found that the claimant's email was clearly not transphobic and to treat it as such was harassment. The Tribunal also found that the same acts would amount to direct discrimination.
The Tribunal also found that the ERCC's actions towards the claimant were indirectly discriminatory. The provision, criterion or practice (PCP) for this claim was the practice of requiring the manifestation of gender critical beliefs to be treated as a disciplinary matter. This practice could not be objectively justified, and if the claimant's suggested email response to the service user was inappropriate, it would have sufficed for the claimant's line manager to offer guidance.
Given the Tribunal's findings on the claimant's treatment, the Tribunal also found ample evidence of repudiatory breach of contract so that the claimant's constructive dismissal claim was also upheld.
A separate remedies hearing will be held in due course.
Comment
This is a Scottish first instance decision. It is therefore not binding on Tribunals in England and Wales. It is nevertheless an interesting example of the evolution of case law in this area. Employers should carefully consider their approach where employees hold opposing views on these issues.