Ms Forstater subsequently lodged a claim at the Employment Tribunal alleging direct discrimination and harassment on grounds of belief.

A preliminary hearing was necessary to decide whether Ms Forstater’s views were capable of protection under the Equality Act 2010 as a philosophical belief.

The first step was to define Ms Forstater’s views. The Tribunal summed up these as a “gender-critical belief” that “sex is biological and immutable”.

Next, the five-part test from the case of Grainger plc v Nicholson was applied to determine whether Ms Forstater’s belief was capable of protection under the Equality Act. The Grainger test requires the belief to be:

The Tribunal found that all of the “Grainger criteria” applied except for the fifth criterion (“Grainger V”), therefore Ms Forstater’s views did not amount to a protected belief. Ms Forstater appealed this decision.

The EAT disagreed with the Tribunal’s decision. It held that Grainger V should only exclude “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. The EAT acknowledged that only a very few beliefs would hit that threshold. Of Ms Forstater’s views, the EAT said:

It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Employment Appeal Tribunal

Anticipating that its judgment could be open to misinterpretation, the EAT took the unusual step of making its position on transgender issues clear. It stressed that its findings did not mean it was expressing any views on the merits of either side of the transgender debate. It said the judgment was not licence for persons to “misgender” trans persons (use non-preferred pronouns or gender) with impunity. The EAT pointed out that the Equality Act continues to prohibit harassment on grounds of gender reassignment.

In this ruling, the EAT has set a high threshold for the operation of Grainger V. It deems only the most abhorrent views or those capable of inciting others to be unworthy of protection. Some will feel that the threshold has been set far too high.

It remains to be seen whether CGD will appeal the decision to a higher court. [...]]]> http://lawandlabour.com/gender-critical-views-were-part-of-protected-belief/feed/ 0 http://lawandlabour.com/short-jilbab-not_discriminatory/ http://lawandlabour.com/short-jilbab-not_discriminatory/#comments Thu, 28 May 2015 15:05:37 +0000 http://lawandlabour.com/?p=2171 A nursery which objected to the length of a Muslim job applicant’s jilbab did not behave in a discriminatory manner, the Employment Appeal Tribunal has found. The nursery had a health and safety requirement to ensure that clothing worn by its staff did not constitute a tripping hazard. This rule was not inherently discriminatory toward Muslim women.

A jilbab is a floor-length garment that covers a woman’s entire body leaving only the face and hands exposed.

The job applicant, Ms Begum, belonged to the Muslim faith and she wore a jilbab and hijab. Ms Begum applied to Barley Lane Montessori Day Nursery for an apprenticeship. During the interview for the apprenticeship, the manager of the nursery noticed that the jilbab worn by Ms Begum was covering her shoes and touching the floor. The manager considered the length of the garment to be a tripping hazard and asked Ms Begum whether she could wear a shorter jilbab while at work. It was a common practice among other Muslim women working at the nursery to wear a shorter jilbab at work and then change into a longer jilbab after work.

Ms Begum considered that the request to wear a shorter jilbab went against her beliefs and she declined the offer to work at the nursery. She subsequently brought a claim in the Employment Tribunal complaining of indirect discrimination on the grounds of her religion. The claim did not succeed and she appealed to the Employment Appeal Tribunal (EAT).

In dismissing the appeal the EAT confirmed that the Tribunal had reached the correct decision. The EAT agreed with the Tribunal that the nursery had not sought to prevent Ms Begum from wearing a jilbab but from wearing a garment whose length could pose a risk to health and safety.

The Tribunal had determined that the relevant PCP (provision, criterion or practice) for the purposes of assessing the claim of indirect religious discrimination was not a rule that Muslim women could not wear a jilbab, as Ms Begum had argued, bur rather the requirement that members of staff dress in ways that did not endanger their health and safety, or that of their work colleagues or the children in their care.

“The Claimant was permitted to wear a jilbab, even full-length, providing it did not constitute a tripping hazard. Whatever length the jilbab worn to the interview was, it was reasonably contended to be a tripping hazard.” Employment Appeal Tribunal

CASE Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery, Employment Appeal Tribunal, 22 May 2015

Photograph: “At the play school” by Markus Spiske / raumrot.com

Ms Halawi ran an outlet in the duty free section of Heathrow Airport which stocked cosmetics produced by Shiseido. The arrangement by which this outlet was set up and run involved five parties:

1. WDF – responsible for management of the site in which the outlet was located; they ran all the outlets at that site, including the one run by Ms Halawi. 2. Shiseido – manufacturer of the beauty products sold at the outlet. 3. CSA – a service company who provided sales staff to sell Shiseido products. 4. Nohad Ltd – a service company set up and controlled by Ms Halawi for the provision of her services to CSA. 5. Ms Halawi – claimant.

As the outlet was located beyond the security-controlled gates, Ms Halawi required an airside pass to work there. This pass was authorised by WDF. In June 2011, WDF withdrew Ms Halawi’s pass meaning she could not longer work at the outlet.

Ms Halawi complained that WDF’s actions amounted to race and/or religious discrimination. However, in order to bring a claim against WDF she needed to show that she was an employee of WDF.

On the face of the facts, the complicated arrangement of relationships appeared to show no direct contractual relationship between Ms Halawi and WDF. Ms Halawi sought to rely on the business partner guidelines issued to her by WDF as amounting to a “contract personally to do work”. This, she argued, would make her an employee for the purposes of equality legislation. However, neither the Employment Tribunal nor the Employment Appeal Tribunal was convinced that she was indeed an employee of WDF.

At the Court of Appeal, Ms Halawi argued changed her tune and instead argued that a contract between the parties was not necessary. It sufficed that there had been a relationship of subordination between WDF and her.

The Court of Appeal disagreed. It found that the true test of whether she was an employee was to look at the level of her integration into WDF’s business. It noted that WDF did not control the way in which she carried out her work, which reflected her lack of integration into WDF. The only control WDF had was over the place where she worked.

A further strike against Ms Halawi’s status as an employee was the fact that she was not required to staff the outlet herself. If need be, she could get another person to run the outlet on her behalf. She had in fact done so in the past.

Despite its decision, the Court of Appeal was uneasy that if Ms Halawi had indeed been a victim of discrimination (an issue which had never been determined) she would be left without a means of seeking redress.

CASE Halawi v WDFG UK Ltd t/a World Duty Free, Court of Appeal, 28 October 2014

The claimant, Mr Olivier, was dismissed from his job as a benefits advisor at the Department of Work and Pensions after he stood for election as a county councillor for the Labour Party without first seeking the permission of his employer.  He also had a letter published in a local newspaper in which he criticised the Government’s benefits policy.

Following his dismissal, he brought claims for direct discrimination on the grounds of religion and belief and for unfair dismissal.  A preliminary hearing was held to decide whether Mr Olivier’s belief in democratic socialism could amount to a religion or belief for the purposes of the EqA.

The judge relied on the definition of a philosophical belief given in the 2010 case of Grainger plc v Nicholson.  In that case it was held that a philosophical belief must:

The judge found that Mr Olivier’s belief in democratic socialism satisfied the Grainger test so as to amount to a philosophical belief for the purposes of section 10 of the EqA.  Mr Olivier’s belief was more than support for a political party, but was a personal philosophical belief.

CASE Mr C Olivier v The Department of Work and Pensions, Employment Tribunal, 23 October 2013