The Fahmy v Arts Council England tribunal judgment

Background

On 21 June 2023, Ms Fahmy won an important employment tribunal (ET) decision against her former employer, Arts Council England (ACE), the first ET case relating to harassment for gender critical beliefs. ACE is an executive non-departmental public body, and also a registered charity.

Ms Fahmy was a long-standing employee of ACE and had attended an internal Teams meeting where hostile comments were made about people who hold gender critical beliefs. These comments were made during a work discussion about the award (and removal) of an ACE grant to LGB Alliance.

During the meeting, Ms Fahmy made comments which made it clear that she holds gender critical beliefs. Following the hostile meeting some of her colleagues circulated a petition with further hostile and intimidating comments which were aimed at all gender critical people, calling them “openly discriminatory transphobic staff”, and comparing them to racists, while also calling supporters of LGB Alliance “neo-nazis, homophobes and Islamophobes”.

In response Ms Fahmy raised a Dignity at Work complaint with ACE asserting that she had been harassed during the meeting. Her internal complaint was not upheld and Ms Fahmy was, wrongly, not given the right to appeal the decision. Given the circumstances, she felt she could no longer work for ACE and resigned before the final ET hearing took place.

In a unanimous judgment, the Leeds Employment Tribunal ruled that Ms Fahmy was subjected to harassment for her gender critical beliefs.

Treatment of gender critical beliefs in the public sector.

Comments made by ACE staff members in chat forums were found to have crossed the threshold for harassment when they wrote:

“It is clear that there are members of our own organisation who are happy to be vocally anti-trans and “gender critical”. We shouldn’t have to put up with this any more than we would racist or sexist behaviour. It’s time to stamp out bigotry in the Arts Council in general and that change is to come from the top down and filtered through all departments PS… The mistake imho has come from the lack of clear condemnation of a transphobic organisation and no action being taken against the so-called “gender critical” anonymous who are openly expressing their distaste at the funding being? withdrawn. Much like how our recent antiracism training has illustrated there is an ongoing problem with racism in our ranks that needs to be challenged, this cancer needs to be removed from our organisation. Hatred of others for their differences should not be tolerated.”

And

“… It’s extremely disappointing to see people trying to defend them [LGB Alliance] here of all places”

The Tribunal found that the tone and content of these individuals’ emails and comments “went beyond the reasonable expression of a personal opinion in terms which were highly derogatory”.

Many civil servants will have read and heard similar comments in their own workplace in blogs, forums, training sessions and meetings. SEEN received numerous examples of this sort of language and behaviour in response to our March 2023 Inclusion Survey. 70% of respondents reported that they have either witnessed/experienced bullying, harassment or discrimination (BHD) against staff for having gender critical views or do not feel that their workplace offers a sufficiently respectful and tolerant environment to voice a view that does not align with the belief in gender identity. 38% of respondents reported having themselves witnessed or experienced BHD against staff for having gender critical views (15% didn’t know or preferred not to say). Of the 47% (142) of respondents that had not witnessed or experienced BHD themselves, only 45% (65) felt their workplace does offer a sufficiently respectful and tolerant environment to voice a view that does not align with the belief in gender identity.

This judgment suggests that they are right to be concerned, especially when managers and senior leaders themselves use similar language, or endorse (or ignore) such behaviour by their staff. In Ms Fahmy’s case, Simon Mellor, the ACE Deputy Chief Executive expressed the view in a staff meeting that LGB Alliance “has a history of anti-trans activity”. In the words of the judgment, Mellor’s comments “opened the door, for the subsequent petition and comments within that petition. Whether intended or not, it led to the petition”.

What the Fahmy judgment means for the Civil Service

The Fahmy judgment is not an appeal judgment, and so is therefore not in itself binding. While it does not introduce any new principles of law it does give an important indication of the kind of comments and conduct likely to constitute bullying and harassment in the workplace of those with the protected characteristic of holding gender critical beliefs. In this case, such comments included likening gender critical views to hate, transphobia or bigotry, and the suggestion that such lawful views should or will not be tolerated.

It is important to note that, although the ACE staff who made the derogatory comments were subsequently disciplined, this did not prevent Ms Fahmy’s claim from succeeding. Employers have a responsibility to create workplace cultures where such harassment is understood to be unacceptable. Indeed, section 109 of the Equality Act makes employers liable for what their staff do, unless they have taken reasonable steps to prevent it.

This is perhaps why the Tribunal was also critical of the ACE Deputy Chief Executive Simon Mellor. Despite finding that the views he expressed didn’t meet the threshold for harassment, the Tribunal “doubted the wisdom of Simon Mellor providing his personal opinions during a meeting which was available to all members of staff” and found that it was inappropriate for Mellor to have expressed his personal views and solidarity with one side of the debate.

In upholding Ms Fahmy’s claim, the Tribunal found that:

“The respondent was aware this was a contentious issue. The respondent was aware of the need to update its policies and provide appropriate training with regard to the issue of belief but the Tribunal is not satisfied that the respondent has taken all reasonable steps as required in section 109(4) to prevent its employees from harassing someone with the claimant’s protected characteristic.”

It is, therefore, incumbent on an employer who knows (or ought to know) that there is contention between competing beliefs held by its staff to ensure that:

• its policies reflect the law as it is;
• that training is available to staff, in particular staff who may have to deal with grievances relating to these matters; and
• to ensure that workplace network activity is conducted with due regard to the protected characteristic of belief.

It is also important to note that any approach which seeks to suppress, exclude or prioritise one protected belief over another on the basis that this aligns with organisational values (e.g. purported ‘inclusivity’) or in order to avoid perceived controversy, is unlikely to be found to be lawful.

With thanks from SEEN to one of our members, who kindly summarised the above case for use in our blog.

Cover image: Equality law by Nick Youngson CC BY-SA 3.0 Pix4free