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Professional Consequences of Free Speech
This week, we examine a pivotal Employment law case on freedom of expression and its professional consequence in the case of Allison Bailey v Stonewall Equality Ltd & Ors. The culture wars not only play out on social media but also in the courts if employers take issue with opinions expressed on social media.
Background
Allison Bailey, a criminal Barrister at Garden Court Chambers (GCC), sued GCC for discrimination and victimisation and sued Stonewall Equality Ltd under section 111 and 112 of the Equality Act 2010 for inducing or aiding and abetting the discrimination.
GCC took part in Stonewall’s Champions Program which encouraged employers to create an inclusive LGBTQ+ workplace.
The Claimant expressed her concern about the issue of whether a person’s sex can be changed on social media, stating that sex is ‘immutable’. In 2019, the Claimant launched the Lesbian, Gay and Bisexual (‘LGB’) Alliance on Twitter. This led to strong reactions and criticisms directed at her as well as GCC.
Consequentially, GCC launched an investigation over tweets which were said to be “controversial”.
The Claimant argued that her gender critical beliefs were protected as philosophical beliefs under Equality Act (EqA) 2010, and therefore the investigation launched against her was discriminatory. Following the Forstater case, people who believe that a person’s sex cannot be changed and that a transwoman is in fact a man have a protected belief, which is known as gender critical. Whether or not a belief that a person’s sex can be changed is protected has yet to be determined by a Tribunal and would have to pass the Granger test.
Ms Bailey claimed that Stonewall had exerted undue influence on GCC against her, based on her expression of protected beliefs. This resulted in GCC’s investigation into the Claimant who intentionally distanced themselves from the Claimant because of her publicly expressing gender critical views.
The Respondents argued that their actions were in a direct line with their commitment to providing an inclusive and diverse community. Their concern was that the Claimant’s beliefs may have been harmful and contradictory to their stance on inclusivity in the workplace.
The Employment Tribunal (‘ET’)
The ET found that Ms Bailey’s beliefs were protected under Article 9 of the European Convention on Human Rights (ECHR). By reducing the Claimant’s work, the ET found GCC had discriminated and victimised the Claimant
However, the Claimant was unsuccessful in her claim against Stonewall. The Tribunal did not find that the First Respondent had induced the Second Respondent under s111 EqA 2010. In agreement with the ET, the Employment Appeal Tribunal found Ms Bailey’s appeal against Stonewall to be unsuccessful.
In summary, Ms Bailey’s case has set a precedent by reinforcing the protection of philosophical beliefs under the EqA 2010. This case highlights the importance for employers to carefully assess whether the influence or reliance of third parties, like Stonewall, are in accordance with the law to protect them from potential discrimination and victimisation claims.
Takeaway Points
Ms Bailey’s partial success indicated pivotal points in a modern-day workplace, by-
- Reaffirming the Tribunals’ position on safeguarding individual rights within the workplace.
- Giving employees the right to reasonably express controversial philosophical beliefs under EqA 2010 without being subjected to professional consequences.
- Emphasising the challenges employers face between balancing support for LGBTQ+ employees and workers as well as upholding their own professional beliefs.
If you or someone you know are dealing with a similar issue, please contact us for further assistance.
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Taking these proactive steps not only ensures compliance with the new law but also fosters a safer and more respectful workplace environment for all.
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