Your company provides outsourced IT support. It employs 100 people and has offices in an industrial estate near Bristol. The highest of your three floors contains a gym and attached changing rooms, with separate facilities for men and women. Two years ago your HR Director Gerry carried out a review of your corporate values which had previously been very simple: provide an efficient and user-friendly service. Following the review and under Gerry’s guidance, the company adopted as its corporate values, the promotion of Social Justice.
Two months ago, Gerry announced that he now identifies as Gemma and wishes to be referred to as she in all internal and external correspondence. Gemma also wishes to use the female changing facilities but some of the female members of staff have let it be known that this makes them deeply uncomfortable. Meanwhile, you have learned from Gemma that Mary an employee who identifies as a critical feminist and a Christian has stated in a WhatsApp Chat that in her view gender is fixed at birth and cannot be changed. Gemma has filed a grievance.
This story presents some deeply uncomfortable problems involving deeply contested applications of the Equality Act and the Human Rights Act. These problems are real but also new arising as they do from changing and contested social values, particularly around the question of what is a woman? A rewatching of Mony Python’s Life of Brian and its offensive treatment of in particular Reg’s desire to be a woman makes this very clear. On the other hand, our story shows how gender has divided the social justice movement itself producing tension between the LGBT+ movement and feminists.
Also new is the desire of many companies to market themselves not by reference to technical competence but rather “social justice”, including LGBT+ values. This widens the scope for tension between the values of the company and the values of individual employees and their expression on social media. 20 years ago (roughly) before the invention of WhatsApp/Twitter the problem would have been much less significant.
Changing attitudes to freedom of speech and freedom of religion are also in play. For many years it was a pillar of human rights law that the right of free speech could not be restricted because others found it offensive. This, however, is now much more contested, the argument being that the right to freedom of speech must (at least in some situations) be exercised taking account of the sensitivities of others. In particular, it is said that if particular views make the hearer “feel unsafe” (another notion not known at the millennium) than that is sufficient to restrict the circulation of these views. In the case of employers, free speech must be exercised so as not to damage the employer’s brand.
This piece has not provided concrete advise to the company mainly because the Courts have always made if clear that the answer depends on the specific circumstances. On the other hand, many of the issues recently came before Higgs v Farmor School which made it clear that any infringement of an employee’s freedom of speech must be objectively justifiable. Mrs. Higgs (a school administrator) had been dismissed for expressing horror at what progressive educationalists were teaching young children about gender. The Court of Appeal held that the school’s concerns (e.g. about its reputation) did not come close to satisfying the test.
The Supreme Court has joined the debate holding that in the Equality Act references to women are to biological women not to those holding Gender Recognition Certificates (or by extension self identifying) This may in certain circumstances permit the exclusion of Gemma from the female changing rooms. Whether that is required of the employer has still to be decided.
For specific advice on these issues and the wider application of employment law in the work place Richard O’Dair (Employment Law Barrister) who represented Mrs. Higgs can be contacted on rodair@4-5.co.uk (mobile 07952986147).
