Dismissal for use of email signature as protest against council’s pronouns policy was not discriminatory

Tribunal finds email signature was an objectionable manifestation of claimant’s gender critical belief

We have reported on a number of cases which have considered whether an employer’s response to an employee’s expression of gender critical beliefs is discriminatory on the ground of religion or belief. Gender critical beliefs, put simply, are beliefs that sex is binary and immutable from the point of conception.

See our article from July 2023: Was dismissal of school employee for gender-critical Facebook posts discriminatory? for details of the EAT decision in Higgs v Farmor’s School, a case concerning social media posts made by a pastoral administrator at a school and links to similar cases.

These cases show that gender critical beliefs are likely to be found to be protected under the Equality Act 2010. It is important to note that the law also protects the manifestation of a protected belief in some circumstances due to the interaction of the Equality Act and human rights law.

Something will be a manifestation of a protected belief and protected under Article 9 of the European Convention on Human Rights (ECHR) if there is a sufficiently close and direct link (or “nexus”) between the act and the underlying belief.

In the case of Mrs Higgs, the EAT listed the factors the tribunal will consider in order to decide whether the employer’s action was due to an objectionable manifestation of a protected belief, and so not discriminatory.

A recent case in the employment tribunal has considered whether the dismissal of a local authority employee for protesting against a pronouns policy was discriminatory and unfair.

Case details: Orwin v East Riding of Yorkshire Council

Mr Orwin was an ICT Project Officer employed by the East Riding of Yorkshire Council (the Council). The Council introduced a new policy which invited employees to add pronouns to their email signature. There was no requirement to do so. The policy explained why some people may choose to state their pronouns and provided some examples.  The aim of the policy was to “promote inclusion of people who identify their gender in a way which is not necessarily consistent with their biological sex”.

Mr Orwin objected to the policy on the basis that it “facilitated self-identification” and presented a safeguarding risk to vulnerable people and “the protection of women’s spaces”. Mr Orwin added the following to his internal email signature: “XYchromosomeGuy/AdultHumanMale”.

A number of discussions ensued between the claimant and his managers. Over a period of time, Mr Orwin was issued with three management instructions asking him to remove the email signature due to concerns that it was transphobic and that people would be offended by it. The claimant did not comply and suggested that he might also use the email signature on external emails in the future. The tribunal found that this was a tactic to apply pressure on the Council to change the policy.

Mr Orwin was suspended and a disciplinary process ensued which led to his summary dismissal for gross misconduct on the basis that he had unreasonably failed to comply with what amounted to reasonable management instructions to remove the signature. The dismissal decision was upheld on appeal.

Gender critical belief was protected

The tribunal concluded that Mr Orwin’s belief was a protected philosophical belief under the Equality Act. It also found that instances of less favourable treatment had taken place. However, it concluded that the protected belief was not itself the reason for the less favourable treatment of the claimant.

Email signature was not a manifestation of protected belief

The tribunal went on to consider whether the reason for the less favourable treatment was a manifestation of a protected belief.

Considering the right to freedom of conscience and belief under Article 9 ECHR, the tribunal assessed whether there was a sufficient link between the email signature and the protected belief and concluded that there was not.

The tribunal considered that the key question was: “why did the claimant create the email footer?”. It found that the email signature was an act of protest and that the claimant knew that it was a deliberately provocative act aimed at persuading the Council to change their policy. The claimant had explicitly stated that his use of the signature would challenge the agenda of those who implemented it. The tribunal found that it was not done out of a need to adhere to the claimant’s gender critical beliefs, but intended to mock the idea of gender self-identification.

Claimant’s right to freedom of expression was not infringed

The tribunal noted that there is no need for a nexus between the act complained of and the protected belief when it comes to the Article 10 ECHR right to freedom of expression and so went on to consider whether the claimant’s Article 10 rights had been infringed.

The tribunal found that the Council was seeking to comply with its public sector equality duty by having due regard to the need to foster good relations between people with and without various protected characteristics and that its interference with the claimant’s right to freedom of expression under Article 10 ECHR was therefore prescribed by law.

It concluded that the interference with the claimant’s Article 10 rights was not because of the claimant’s expression of views, but the way in which the claimant sought to express them. As the email signature was designed to be provocative, it was an objectionable manifestation of the protected belief.

The tribunal took into account the Council’s role in providing services to all members of the local authority area and accepted that seeking to present as inclusive was a very important objective for the Council. It noted that the claimant was using the Council’s own platform and resources to express his views and concluded that, if the signature had been used externally, it would have suggested to people in the Council’s area that the Council accepted that it was permissible for its employees to use its resources and its platform to mock people whom the Council served.

When considering whether less discriminatory action could have been taken to achieve the aim, the tribunal noted that the Council had sought to have discussions with Mr Orwin to find an acceptable alternative to the email signature, but that Mr Orwin refused to engage. As the claimant asserted that he would continue to use the signature, even if it was remotely removed, the Council was left with no choice but to dismiss the claimant.

The tribunal also went on to find that the dismissal was not unfair or wrongful.

Comment

This is a first instance decision and may be appealed. However, it is a useful judgment as it works through the key principles which apply where employees are dismissed or disciplined for expressing what may be protected beliefs.

Key factors and learning points in this case were:

1. the Council had a clear duty to promote inclusion under its public sector equality duty – employers should ensure that the legitimate aims behind any policy are clearly expressed and understood by staff and managers;
2. that the claimant made it impossible for the respondent to find an alternative way forward – employers should actively look for less discriminatory ways to achieve their aim before moving to dismissal; and
3. the tribunal considered that the risk of reputational damage and the impact on potential service users was much higher in this case, given the use of Council emails to manifest the belief, than in cases where an employee has made their views known through their own social media – employers should gather specific evidence on the impact or potential impact of the conduct on reputation when this may be a reason to discipline or dismiss for publicising protected beliefs.