EMPLOYMENT LAW & FREE SPEECH: THE INADEQUACIES OF THE GRAINGER CRITERIA

EMPLOYMENT LAW & FREE SPEECH: THE INADEQUACIES OF THE GRAINGER CRITERIA

HERE is the judgment in the case of Maya Forstater v CGD Europe & others.

I will say little in this article about the specific belief in question and instead consider the wider issue of when a belief is likely to fail the final Grainger criterion, namely being worth of respect in a democratic society, being compatible with human dignity and compatible with the fundamental rights of others.  Furthermore, I will consider the policy implications of this and whether the law should be reformed.

The key paragraph in the Forstater judgment is paragraph 84 which states:

However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore

The logic behind this paragraph and the decision, appears to be as follows; where the belief in question would justify policies that would infringe Convention rights (as developed and interpreted by case law), it will not be protected by the Equality Act 2010. (This is despite the fact that Marxism was cited in Grainger as a political philosophy that should be protected under the Equality Act 2010, even though it would not respect the right to property under article I, Protocol I of the ECHR).

This reasoning has far reaching implications, as the rights set out in the ECHR are subject to continued expansion via new judicial interpretation.  If for example, as part of one’s philosophical belief in nationalism one opposed the CHAHAL JUDGMENT/non-refoulment or even the development of article 8 ECHR which has been used to prevent deportations, then presumably such a belief would not be protected under the Equality Act 2010.

If current trends continue it is likely that a large number and range of beliefs will be deemed unworthy of protection under the Equality Act 2010.  In the Richard Page case, a religious belief that homosexuality was immoral, without any related belief requiring punishment or unequal treatment  against homosexuals, was thought to be unworthy of respect in a democratic society (this is the belief of all the major religions), see HERE.

If the belief is not protected under the Equality Act 2010, then in practice the employer will feel empowered to dismiss their employee for expressing such a belief.  This appears to be occurring in practice on a large scale and is having a chilling effect on the free discussion and exchange of ideas, probably more so than hate speech laws due to the limited resources of the criminal justice system.

To avoid this, what is necessary is quite simply, a law that prevents employees being dismissed for expressing opinions outside of their employment and which have no bearing on the same, see HERE for my proposal.  This would be preferable to requiring tribunals to evaluate the beliefs of employees and to determine whether the employees’ beliefs are isolated beliefs or philosophical beliefs[1].      


[1] At para 60 of R (Williamson) V Secretary of State for Education & Employment – [2005] UKHL 15, Lord Walker in a dissenting judgment, expressed ‘alarm’ at the requirement that Courts would have to evaluate the cogency of beliefs and whether they are worthy of respect in a democratic society. The Grainger criteria were to a large extent derived from Williamson. Williamson concerned a belief in capital punishment and whether such belief was protected under article 9. Lord Walker’s concerns have proven entirely justified.