Thread by @MForstater

New in the Industrial Law Journal "Belief vs. Action in Ladele, Ngole and Forstater" by Professor Robert Wintemute, Kings College London

academic.oup.com/ilj/advance-ar…

Wintemute asks "Did the Employment Tribunal correctly distinguish the claimant’s belief from hypothetical (speculative, future) harmful action that might involve
discrimination against, or harassment of, a transgender co-worker or customer? "

He considers the case of Ladele - a registrar whose religious belief meant she would not conduct same sex weddings - her belief could not be accommodated, because she had chosen to act on it in a way that caused harm to others.

And Ngole, a student social worker who won his case " I never advocated any hate...towards people who are in same sex relationships. ... I never stated that people in same sex relationships should be treated differently.."

Wintemute notes "Ms Forstater was not dismissed because of her treatment of any transgender person, such as a co-worker or a customer of her employer..but because of her co-workers’ intolerance of her unfashionable (to them) belief that, in some situations, sex matters"

"The Employment Tribunal noted her statements (on Twitter and to the Tribunal) that her belief would generally not be translated into action, especially in her workplace"

"Despite her stating that she would generally be polite and kind, the Employment Tribunal was concerned that Ms Forstater might harass a transgender person in the workplace, even though there was no evidence that she had ever done so"

The Tribunal merged hypothetical harmful action into M Forstater’s belief despite the absence of any evidence that she had failed to respect the dignity in the past, and despite the evidence that she would generally respect the dignity in the course of her employment

The Tribunal then described this hypothetical action (‘refer[ring] to a person by the sex she considered appropriate’) as a ‘core component of her belief’, which made her belief ‘not worthy of respect in a democratic society’

Wintemute concludes "If the ET had correctly made the essential distinction between belief & action, without merging hypothetical harmful action into Ms Forstater’s belief, it would have concluded that her belief is ‘worthy of respect in a democratic society’."

"Whether one agrees or disagrees w Ms Forstater’s belief in two immutable biological sexes, her belief can hardly be put at the same level as Holocaust denial or incitement to violence. "

The ET erred in law by distorting the 5th Grainger criterion, w the effect of sweeping into the ‘not worthy of respect’ category any belief that some persons might find ‘offensive’ & therefore consider harassment, if (hypothetically) it were expressed directly in the workplace.