What is the relevance to my business?

The claim brought by Mr Lister against his former employer, New College Swindon, is the latest in a growing body of cases that consider the manifestation of gender critical beliefs in the workplace, especially when balanced against the rights of trans and non-binary people. Although this case occurred in an educational setting, the lessons learned are relevant to all workplaces.

We are receiving an increasing number of queries about how to handle similar situations in the workplace - where employers are concerned about protecting both their gender critical employees but also other employees, clients, and service-users.

We explore below the facts and findings in this decision and suggest some ways to help businesses tackle this.

What happened in this case?

New College Swindon employs around 600 members of staff. Mr Lister holds gender critical beliefs, namely that “sex is binary, immutable and a biological fact and should not have been conflated with gender identity”, a view which the Tribunal held was capable of protection as a philosophical belief.

This tribunal claim arose after complaints were raised about Mr Lister’s offensive conduct towards a trans student (Student A), ultimately resulting in Mr Lister’s dismissal.

The key facts were:

• Mr Lister raised safeguarding queries about a trans student (Student A)(whom he taught and had asked Mr Lister to use his correct pronouns and name).. Mr Lister’s concerns were investigated but not upheld. Concern was raised, however, about the language Mr Lister had used towards and about the student.
• Mr Lister was advised to read the College’s Gender Reassignment Policy which took a supportive approach to students who were transitioning. Despite this, Mr Lister deadnamed and misgendered Student A and made highly offensive comments to him. He also took to gesturing to the student, rather than using his name.
• Student A’s attendance at Mr Lister’s classes deteriorated. Fellow student, Student B, complained to the College, explaining that Student A had been too afraid to report Mr Lister’s behaviour himself. This complaint was investigated, bringing to light further incidents including Mr Lister’s gender critical and potentially offensive tweets.
• The College upheld the student’s complaint and made a referral to the LADO (the officer responsible for managing allegations against adults who work with children), who authorised the College to run its own investigation.
• A risk assessment concluded that there was a very high risk of harm to the students because of the Claimant’s stance on gender identity. Mr Lister was therefore suspended and subjected to a disciplinary process.
• The outcome balanced Mr Lister’s philosophical belief with the College’s Gender Reassignment policy and found that all the discrimination and harassment allegations were made out except for the decline in attendance (which was only partially upheld as it had not picked up after Mr Lister’s suspension). Allegations relating to his social media posts were dismissed because his Twitter account was not expressly inked to the College and the views were personal.
• Mr Lister was dismissed and a recommendation made for a possible DBS referral.
• Mr Lister unsuccessfully appealed his dismissal, and, further to the referral to the DBS, was placed on the barred list.

The Employment Tribunal’s decision

Mr Lister brought claims of direct and indirect discrimination on the grounds of philosophical belief and a claim for unfair dismissal, all of which failed. The Tribunal found that “everybody is permitted to express their views in a free and democratic society, but not to the extent that others are upset, distressed and / or harassed.” Crossing that line would make the manifestation of a belief objectionable.

Looking at some specific findings:

Direct discrimination:

• The tribunal found that the LADO referral was appropriate. The Claimant’s interactions with Student A were manifestations of his gender critical views. However, in making a referral to LADO the College was not directly seeking to restrict his manifestations (although that might have been a consequence). But even if it had done so, that would have been justified as the College sought to protect Student A and prevent further harm.
• The College was also justified in seeking to limit or restrict his manifestation for his failure to adhere to policies and his interactions with Student A. It was proportionate as Mr Lister made clear he would not change his behaviour and there was no other way for the College to avoid harm.

Indirect discrimination:

• The Tribunal could not find a group disadvantage (i.e. that those who shared Mr Lister’s views were disadvantaged by the College’s Trans Policy) or that Mr Lister faced a personal disadvantage (i.e. that he personally was disadvantaged by it).

Even though the question of justification was therefore not even engaged, the Tribunal concluded that the Policy and its application would have been objectively justified.

Unfair dismissal

• Dismissal was within the reasonable band of responses, due to Mr Lister’s lack of contrition, the harm already suffered, and his indication that his behaviour would not be modified.

Lessons for all employers

Policies: In this case policies played a key role. The Tribunal noted that the College had policies in place which existed to “assist and protect those within it” and Mr Lister’s failure to follow these in several key respects was critical. Also, none of the policies prevented the him from holding his gender critical beliefs, nor were they applied differently to him in comparison to those who did not share his views.

The need for up to date and appropriate policies is, therefore, crucial. Relevant policies in this context will include:

• Communications / Social Media Policy – what, if anything, is said about social media (for example is it clear that when employees express views on social media they should state views are their own and not representative of your organisation)? It was helpful to Mr Lister that he did not link his account to the College and that his views were stated to be his own.
• Safeguarding Policy – of course this kind of policy is not relevant in all contexts, but even if employees have only transient interactions with children or vulnerable adults in the course of their employment, adopting the “wide view” of safeguarding means it may be helpful to implement one. For example, is there a clear reporting structure for raising safeguarding concerns? This could sit neatly within a whistleblowing policy, potentially as an additional limb.
• Trans and Non-Binary Policy – here, the College’s policy was critical in protecting students, teachers and parents, and in justifying their decisions about Mr Lister.
• Dignity at Work Policy – if you are providing services to trans and non-binary people this should make clear how you will deal with people with gender critical beliefs, specifically if manifestation of them will have an impact on service delivery. Even if you are not in an industry such as education or healthcare, you are likely to have trans or non-binary staff, clients or customers. It is therefore valuable to make sure your policy covers protections both for trans people (which, under the Equality Act 2010 is unqualified, unlike philosophical beliefs) and gender critical people. Addressing this in advance may assist if conflict arises in the future.

A thorough and fair investigation: In this case the College conducted a very effective investigation, balancing its policies with the complaints and conduct to come up with a reasonable outcome. If social media posts are the subject of complaint, the Higgs criteria are helpful:

• What is the least intrusive way to achieve the objective?
• Consider the content, tone and extent of the posts?
• Their likely audience?
• Whether it is stated the views expressed in the post are their personal views?
• Do they present a reputational risk to the business?
• How does it relate (if at all) to the nature of the business (e.g. healthcare provider / gender critical beliefs)

It appears that in this case the Higgs framework was applied by the College when considering the tweets. The Tribunal found no fault with the College’s findings, which were that the tweets were sufficiently distinct from Mr Lister’s employment that they did not pose a reputational risk nor a disciplinary matter.

Mentoring and visible accessible support for marginalised people – Student A had been too worried to raise his concerns, perhaps he would have found comfort and backing if there had been a LGBT+ group; similarly, in the business, employee resource groups are critical in supporting diversity and underpinning an inclusive culture. They will also be an invaluable support if concerns are raised as they will be finely attuned to “dog whistles” and the current climate.

Mr K Lister v New College Swindon judgment available here