In the recent case of O’Gorman v Belfast Film Festival, the Fair Employment Tribunal in Northern Ireland dismissed a claim relating to manifestation of gender critical beliefs and found that the employer’s investigation and management of concerns regarding manifestation of belief were not direct discrimination or harassment. This case will be of interest to managers who are navigating this area of law, where internal investigations may be required, and the employer finds itself responding to enquiries about staff conduct matters.
The Tribunal evaluated in detail how the employer responded to public criticism of an employee following the employee’s public ’activism’, including how an internal investigation was managed, and how the employer communicated with stakeholders when concerns were raised.
What happened?
The claimant was employed as the Belfast Film Festival’s Inclusion/Audience Development Co-Ordinator, for around 4 years until her resignation in 2024.
In April 2023 the claimant attended and spoke at a rally in Belfast called ‘Let Women Speak’, which related to women’s rights. In her speech, which was captured on video, the claimant spoke about her support for women’s rights, as well as making statements about the importance of women’s single-sex spaces. The claimant also criticised several organisations working in the sector by name.
The employer was notified about the claimant’s speech by various individuals and concerns were expressed by third parties and Board members. The employer commenced a fact-finding investigation into the claimant’s actions.
The claim
The claimant brought claims of direct discrimination and harassment on the ground of political opinion, which fell under the NI-specific Fair Employment and Treatment (Northern Ireland) Order 1998. She later added a further claim for constructive dismissal, following her resignation during the investigation.
The claim set out numerous incidents relating to the fact-finding investigation itself, and to internal emails which criticised the claimant’s participation in the event. The hearing itself attracted significant press interest, and lasted 8 days, following which the NI Tribunal dismissed all of the claimant’s claims.
Legal differences
The express protection of ‘political opinion’ is specific to Northern Ireland and does not apply elsewhere in the UK. It is intended to prevent discrimination relating to the constitutional politics of the region but has been construed more widely to include other political ‘viewpoints’, such as trade union activism, or feminism. In this case, the claimant and the employer agreed that the claimant's gender critical views were a protected ‘political opinion’ under the relevant statutory provisions.
In the rest of the UK, ‘gender critical’ views, such as those expressed by the claimant, may potentially be a ‘protected philosophical belief’ under Equality Act 2010, provided that the detailed five-limbed test in the case of Grainger PLC v Nicholson is satisfied. The EATs decision in Forstater v CDG Europe is a high-profile example of ‘gender critical’ views meeting this test and qualifying for protection.
The Tribunal’s Decision
In dismissing all the claims, the Tribunal found that the claimant’s role required her to work with various local groups and build relationships. The Tribunal’s decision sets out a clause in the claimant’s employment contract requiring her to have express permission of management to engage in “any paid or unpaid activity which may directly conflict with the business interest of the employer”. The claimant accepted that she ‘should have sought permission to speak at the event’.
The Tribunal looked at the wording of internal emails relating to an investigation into the claimant’s actions at the event, and their content was pored over to determine the intentions of the employer and key individuals at the time. For example, one email called for temporary removal of the claimant’s name from one project, and the Tribunal was asked to consider whether this was in fact an indication that the organisation wanted to remove the claimant permanently from her role (which it held it was not, in the circumstances).
The Tribunal found that although an internal email expressly criticised the claimant’s political views, it was her public expression of those views, and the effect on perception, reputation and relationships with stakeholders, that was key, and a hypothetical comparator (without the claimant’s specific, protected political opinion) would have been treated similarly.
The email criticising the claimant’s views was held not to be harassment of the claimant as the treatment was not on the grounds of her opinion. In the alternative, it could not reasonably be regarded as having the ‘prohibited purpose or effect’ (of creating a humiliating or degrading environment for the claimant), as it was a private email on which the claimant was not copied.
The Tribunal held that the employer’s reason for engaging with an organisation which had been critical of the claimant was not the employer’s disagreement with the claimant’s political opinion, but rather “the need to respond to concerns raised by a significant stakeholder organisation and to manage the respondent’s ongoing stakeholder relationships”. As such, the claimant’s claims relating to the employer’s communications with the stakeholder organisation were not conduct on the ground of the claimant’s political opinion, and in the alternative, did not meet the purpose/effect test for harassment.
Similarly, a manager “liking” an online post from an organisation which criticised the claimant was held to have been intended to manage the stakeholder’s concerns and was not capable of amounting to a breach of the implied term of trust and confidence.
The employer’s decision to initiate a fact-finding investigation of the claimant’s actions was examined, and while there was no note made of the employer’s rationale at the time, the Tribunal looked at the timing and context for the decision and held that it was not influenced by the claimant’s opinion itself but by “concerns regarding the impact of the situation on matters central to C’s role”.
The claimant’s claim relating to removal of her name from an event programme was not upheld, as the decision was “based on the employee’s non-involvement in the event, and not on the content of any political opinion”.
There was some criticism of the employer from the Tribunal, in relation to the Respondent’s handling of the claimant’s Data Subject Access Request, which had been submitted during her during sickness absence. However, this was held to be “administrative error, oversight and inadequate follow-through” rather than arising from any “deliberate, targeted or politically motivated conduct”.
What to take away
As a first instance decision under the NI provisions on political beliefs (the Fair Employment and Treatment (Northern Ireland) Order 1998), rather than the Equality Act 2010, this case may be of limited direct relevance to organisations based in Great Britain. However, it is a very interesting read, as it relates to a very topical matter.
This case emphasizes the way in which emails and social media posts can be examined months after the fact by a tribunal, and how cases which relate to politically sensitive topics can be picked up by the media, creating additional challenges for employers.
The case is a reminder that an employer can investigate the conduct of an employee which has taken place outside the workplace without this being unlawful, but they do need to be able to evidence a genuine concern which relates to their service or operational matters, and caution should be taken in relation to relying on “reputation” alone.
Comment
We are seeing more and more claims brought in relation to religion or belief, and, in particular, to manifestation of beliefs in the workplace. This case is a reminder to keep relevant policies and even contractual provisions under review, and to consider what may or may not be acceptable in the workplace in relation to potential conflicts of interest, and political or topical issues.
In our experience, Equality Act claims of this kind increasingly attract media attention and, as such, there is an aspect of ‘trial by media’ to contend with at the same time as responding to the proceedings.
Employers should be wary about how any statements they may make about an individual employee to third parties may be interpreted. However, in the judgment it’s clear that the Tribunal found that the claimant’s manager had actively been supportive of her, and she accepted in cross examination that certain actions by her manager had been necessary in the circumstances; for example two public statements had been made, one of which the claimant had been able to contribute to prior to publication.
In this case, having an independent external advisor on the grievance process was a useful way of demonstrably safeguarding against potential bias, and in sensitive cases may be a sound investment.
Readers will remember the Court of Appeal’s decision in the case of Higgs v Farmor’s School, regarding manifestation of beliefs, which address how employers can separate the holding or manifesting of a belief, which may be protected, from the manner of its manifestation, which may not be protected. In this case, the Tribunal did not need to carry out such a detailed analysis of whether the employer’s actions were justified as it would in a case such as Higgs, under the Equality Act 2010.
Employers are likely to see more religion or belief claims crossing their desks over the coming year and therefore increased scrutiny of internal investigations and management decisions, where manifestation of religion or belief is challenged.
For guidance on handling employment cases relating to manifestation of gender critical beliefs, please contact our expert employment law solicitors.