Tag: harassment

SOMETHING FOR EVERYONE

A GUIDE TO NAVIGATING UK LAW ON SINGLE-SEX TOILET, WASHING & CHANGING FACILITIES IN WORKPLACES & IN SERVICES PROVIDED TO THE PUBLIC

Something for Everyone – Single Sex Facilities and the Law – Legal FeministDownload

DISCRIMINATION CLAIMS ABOUT SINGLE SEX FACILITIES

1. If an employee thinks that her employer’s practices or policies in relation to single sex facilities in the workplace are discriminatory, she can bring a claim in the Employment Tribunal under the Equality Act 2010 (“EqA”). Similar EqA claims about single sex facilities can be brought in the County Court by users of services which are open to the public, like swimming pools, libraries, hospitals and restaurants.

2. The types of EqA claim which are most likely to be brought in the Employment Tribunal or County Court about single sex facilities are claims for indirect discrimination and claims for harassment related to sex. Other possible claims, which are not dealt with here, are for direct sex discrimination and for sexual harassment (which differs slightly to harassment related to sex).

Indirect discrimination

3. Indirect discrimination claims which might be brought by people who wish to access single sex facilities include:

> A claim by a female employee or service user for indirect sex discrimination brought on the basis that women are more disadvantaged by having to undress, shower or use the toilet in the presence of males than the other way around.

> A claim for indirect religion or belief discrimination brought by an employee or service user who adheres to a religion, such as Islam or some forms of Judaism or Christianity, which prohibits or discourages undressing or being in intimate proximity with people of the opposite sex.

> A claim for indirect religion or belief discrimination brought by an employee or service user with a protected philosophical belief, such as gender critical belief, which recognises the importance and relevance of the differences between the biological sexes.

> A claim for indirect age discrimination brought by an older employee or service user who abides by standards of modesty in relation to undressing, using the toilet or washing in proximity with people of the opposite sex which are more prevalent in older age groups.

4. At the same time, people who wish to access single sex facilities provided for the opposite sex may bring indirect gender reassignment discrimination claims, if their employer or service provider requires trans people to use facilities according to their biological sex. Many (though not all) people who identify as the opposite sex have the protected characteristic of gender reassignment. A claim of this sort would be brought on the basis that (for example) it is more disadvantageous for a man who has the protected characteristic of gender reassignment to use the men’s facilities than it is for a man who does not have the protected characteristic of gender reassignment.

5. In an indirect discrimination claim, if the employee or service user shows that the practice or policy relating to single sex facilities is, on the face of it, indirectly discriminatory, it is then open to the employer or service provider to show that the practice or policy is nonetheless justified because it is a proportionate means of achieving a legitimate aim (“the justification defence”).

Harassment related to sex

6. This is unwanted treatment related to sex which causes the “proscribed effect”. The proscribed effect is that the treatment violates the employee or service user’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her. Harassment can be a one-off event or a series of events or an ongoing practice. Thus an employee or service user can complain either about one or more incidents in which she has encountered a male in the women’s facilities or about a policy or practice of permitting this to happen, so long as she can establish that what she is complaining about is “conduct related to sex”. At present there is no legal authority which says that allowing males to use women’s facilities is “conduct related to sex”, but the point is being argued in Peggie v NHS Fife. The test for whether conduct is “related to” a protected characteristic is a broad one.

7. It is not enough for the employee or service user simply to say that she feels the proscribed effect; it must be reasonable for her to have felt it. This is usually the key issue in harassment claims. In considering this, the court or tribunal must take into account all the circumstances of the case.

WORKPLACES: THE 1992 HEALTH & SAFETY REGULATIONS

Facilities required in workplaces by the 1992 Regulations

8. The law which mandates that single sex facilities must be provided in workplaces is not contained in the EqA. It is contained in the Workplace (Health, Safety and Welfare) Regulations 1992 (“the 1992 Regs”), by which workplaces must have sanitary conveniences (toilets) (Reg 20) and washing facilities (Reg 21). They must also have changing facilities if these are needed because of the type of work done in the workplace or for health reasons (Reg 24). All these facilities must be both “suitable” and “sufficient”.

9. The facilities must be for the use of all people who work in the workplace, not just employees. This includes any type of worker or self-employed contractor.

10. Toilet, washing and changing facilities in workplaces will only be “suitable” for the purposes of the 1992 Regs if there is separate provision for men and women.

11. The only exceptions to the single sex rule for workplace facilities are:

> Toilets: toilets can be in separate lockable rooms (not cubicles).

> Washing: if the only washing required is of hands, forearms and face, the washing facility may be shared between men and women. Otherwise, washing facilities can be in individual lockable rooms that are intended for single-person use (not cubicles).

> Changing: changing rooms can be shared between men and women if separate provision is not necessary for reasons of propriety. Where separate provision is necessary for reasons of propriety, this can be in a single changing room as long as it can be used separately by men and women (i.e. at different times).

12. The 1992 Regs do not say how many facilities must be provided in a workplace to be “sufficient”, other than in the case of old, unmodernised factories, where there must be at least one suitable toilet for use by females only for every 25 female workers, and the same for males.

13. Employment Tribunals do not have jurisdiction to determine complaints about breaches of the 1992 Regs. The principal method of enforcement is via the Health and Safety Executive (“HSE”), which has powers to impose sanctions on employers.

14. In theory it might be possible for an individual to bring a claim for a breach of the 1992 Regs in the County Court on the basis that the employer has failed to comply with a statutory duty, but since the 1992 Regs do not themselves provide for a civil remedy it would be difficult to persuade a court to permit such a claim to proceed, particularly where an enforcement mechanism is provided through the HSE.

Equality Act complaints about single sex facilities in workplaces

Indirect discrimination

15. Although the 1992 Regs cannot be relied on directly in an Employment Tribunal claim (see §§13-14 above), they are pivotal in Employment Tribunal claims for indirect discrimination under the EqA about the provision of single sex facilities in the workplace.

16. If an employee brings an indirect discrimination claim about a failure to provide single sex facilities (as described at §3 above), the existence of the 1992 Regs makes it very difficult – probably impossible – for the employer successfully to invoke the justification defence (see §5 above). To be successful, the employer would have to show that it had a legitimate reason for contravening the mandatory statutory duty in the 1992 Regs and that it did so in a proportionate way. It is difficult to see how this argument could conceivably work.

17. Similarly, if an employee brings an indirect gender reassignment discrimination claim about an employer’s refusal to allow him or her to use the facilities provided for the opposite sex (as described above), the fact that the 1992 Regs mandate single sex facilities in workplaces means that the employer’s justification is virtually watertight.

Harassment related to sex

18. The existence of the 1992 Regs is also significant in relation to claims of harassment related to sex which are about the provision or use of single sex facilities in workplaces (as described at §§6-7 above), even though employees cannot rely on the 1992 Regs directly in the Employment Tribunal.

19. In a claim of this sort, one of the “circumstances” that will have to be taken into account by the Employment Tribunal (see §7 above) is the fact that the 1992 Regs mandate single sex facilities in the workplace. It is very likely that an employee would be able to persuade a Tribunal that it was reasonable for her to experience a breach of this law as a violation of her dignity, since the law itself recognises that single sex facilities can be necessary for reasons of “propriety”.

The meaning of “woman” & “man” in the 1992 Regulations

People without Gender Recognition Certificates

20. There is no law which allows people to self-identify into the opposite sex for the purposes of the 1992 Regs, or indeed for the purposes of any other UK legislation (see For Women Scotland Ltd v The Scottish Ministers [2023] CSIH 37). The protected characteristic of gender reassignment in the EqA protects most trans people from discrimination, but it does not mean that trans people must be treated as though they are the opposite sex, whether under the 1992 Regs or for any other legal purpose. Only a Gender Recognition Certificate (“GRC”) can have this effect. Thus under the 1992 Regs a woman is, at least, anybody who was born female and does not have a GRC, and a man is, at least, anybody who was born male and does not have a GRC.

21. This means that the 1992 Regs do not allow employers to provide toilet, washing or changing facilities only on a self-ID basis. If an employer allows males who do not have GRCs to use a women’s facility, it will no longer be providing a facility which is for women only. This will amount to a failure to comply with the 1992 Regs unless there are suitable and sufficient alternative women’s facilities available elsewhere in the workplace which are not open to any males who do not have GRCs.

People with Gender Recognition Certificates

22. For people who do have GRCs the position is unclear. Under the Gender Recognition Act 2004 (“GRA”) the consequence of a person being awarded a GRC is that his or her sex changes to the opposite sex “for all [legal] purposes” (GRA s.9(1) read with Forstater v CGD Europe [2022] ICR 1). However there are some exceptions to this principle, so there are some laws under which males with GRCs do not have to be treated as women (and vice versa). It is arguable that the 1992 Regs should or must be treated as an exception. If they are, then men with GRCs should be treated in the same way as men without GRCs in relation to single sex facilities in the workplace (see §§20-21 above).

23. In the For Women Scotland case the Supreme Court is currently deciding whether the principle in the GRA applies to the EqA. The Court is not deciding whether the principle applies to the 1992 Regs, so the judgment will not bring certainty about whether employees with GRCs should have access to opposite-sex facilities in workplaces. However, it is likely to give a steer as to how “woman” and “man” should be defined for the purposes of legislation other than the EqA, such as the 1992 Regs.

24. If it can clearly be inferred from the Supreme Court judgment that a GRC does not change a person’s sex for the purposes of the 1992 Regs, then the position for employees with GRCs will be the same as it is now for those without GRCs (see §§20-21 above).

25. If it can clearly be inferred from the Supreme Court judgment that a GRC does change a person’s sex for the purposes of the 1992 Regs, then an employer will have to ensure that there are sufficient women’s facilities in the workplace which can be used by males with GRCs and sufficient men’s facilities which can be used by women with GRCs. However, that does not mean that there will be no legal route for complaint from employees who wish to have access to single sex facilities on a biological sex basis. These employees might still bring complaints arguing that it amounts to indirect discrimination or harassment related to sex (as described at §§3-7 above) for the employer not to also provide single sex facilities on a biological sex basis.

SERVICES PROVIDED TO THE PUBLIC: THE EQUALITY ACT 2010

Facilities permitted in services by the Equality Act

26. There is no equivalent to the 1992 Regs for members of the public who use services such as hospitals, swimming pools, restaurants etc. Instead the position is governed entirely by the EqA, and is considerably more complicated.

27. The starting point is that under the EqA it is usually unlawful direct sex discrimination to exclude service users of one sex from a facility. However there are exceptions to this rule which allow a service provider to provide single sex facilities for one of five permissible reasons. These reasons include that “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex”. Another permissible reason is that the service is a hospital or a similar setting.

28. It is not enough for one of these five reasons to apply. It must also be justifiable in the particular circumstances for the facility to be provided only to women or only to men. The service provider must be able to show that having a facility only for women or only for men is a proportionate means of achieving a legitimate aim.

Equality Act complaints about single sex facilities in services

Indirect discrimination

29. The exceptions in the EqA for single sex facilities are permissive rather than mandatory, which distinguishes them from the rules for workplaces in the 1992 Regs. Thus a service provider does not have to provide single sex facilities for service users. However, a service provider which fails to do so could find itself facing a complaint of indirect discrimination from a service user of one of the types described in §3 above.

30. Here there is no mandatory statutory duty which strengthens the service user’s case, as there is for employees under the 1992 Regs (see §22 above). Nonetheless, depending on the facts and evidence in the case, the strong societal tradition in favour of single sex facilities mean that it will still be difficult for the service provider successfully to invoke the justification defence (see §5 above). If the complaint is of indirect sex discrimination, other factors favouring the complainant should include the overwhelming evidence of the dangers that men as a class statistically pose to women and the evidence of increased risk to women in unisex facilities. For similar reasons it will be difficult for a service user to succeed in an indirect gender reassignment discrimination claim based on a wish to access the facilities provided for the opposite sex.

Harassment related to sex

31. Again, depending on the facts and evidence, it is likely to be difficult for a service provider to defend a claim of harassment related to sex (see §§6-7 above) by arguing that it was not reasonable for a female service user to feel that her dignity was violated by having to share facilities with males. As above, compelling factors include the societal tradition in favour of single sex facilities, the overwhelming evidence of the dangers that men as a class statistically pose to women and the evidence of increased risk to women in unisex facilities.

The meaning of “woman” & “man” in the Equality Act

People without Gender Recognition Certificates

32. Under the EqA a woman is, at least, anybody who was born female and does not have a GRC and a man is, at least, anybody who was born male and does not have a GRC (see For Women Scotland Ltd v The Scottish Ministers [2023] CSIH 37). There is no law which allows people to self-identify into the opposite sex for the purposes of the EqA or for the purposes of any other UK legislation. The protected characteristic of gender reassignment in the EqA protects most trans people from discrimination, but it does not mean that trans people must be treated as though they are the opposite sex, whether under the EqA or for any other legal purpose. Only a GRC can have this effect.

33. Thus if a service provider allows males who do not have GRCs to use the women’s facilities:

> The facilities will no longer qualify as single sex facilities under the exceptions in the EqA (see §§26-28 above).

> Therefore the service provider will have no permission in law to exclude any other men from that purportedly single sex facility.

> The service provider would be vulnerable to indirect discrimination claims of the types described in §3 above or harassment claims of the type discussed at §§6-7 above from service users who wish to have access to single sex facilities. These will be harder to defend if there are no suitable single sex facilities available anywhere else in the service.

People with Gender Recognition Certificates

34. Under the GRA a person who has a GRC becomes the opposite sex “for all [legal] purposes” (GRA s.9(1) read with Forstater v CGD Europe [2022] ICR 1) except in the situations where that principle does not apply. The Supreme Court is currently deciding in For Woman Scotland whether the principle applies to the EqA.

35. If the Supreme Court decides that a GRC does not change a person’s sex for the purposes of the EqA, then trans people with GRCs will be in the same position as those without GRCs. That is, as service users they should be treated according to their biological sex when using single sex facilities (see §33 above).

36. If the Supreme Court decides that a GRC does change a person’s sex for the purposes of the EqA, then in principle a service provider is entitled to allow males with GRCs to use facilities provided for women (and vice versa). However:

> The EqA contains a further set of exceptions which allow service providers to exclude trans people with GRCs from single sex facilities where it is a proportionate means of achieving a legitimate aim to do so. In this way, service providers may provide facilities on a single biological sex basis.

> A service provider which does not invoke these exceptions might face complaints of indirect discrimination such as those in §3 above or harassment of the type described in §§6-7 above from service users who wish to have access to single sex facilities on a biological sex basis.

> A service provider which does invoke these exceptions might face a complaint of indirect gender reassignment discrimination of the type described at §4 above. Claims of this sort will be easier for the trans service user to win than they would be if the Supreme Court had decided that a GRC does not change a person’s sex for the purposes of the EqA.

WHAT EMPLOYERS & SERVICE PROVIDERS SHOULD DO

37. The current state of the law on single sex facilities is clearly unsatisfactory. Quite apart from anything else, it seems that employers and service providers should distinguish between trans people who have GRCs and those who do not. In services in particular this will almost always be impossible to do. Furthermore in both workplaces and services, it makes no difference to other users of the facilities whether a trans person has a GRC or not; they remain a person of the opposite sex.

38. The upshot of this mess is that the safest (although not risk-free) option for service providers and employers is to offer some “unisex” or “gender neutral” facilities for the use of people who do not wish to use facilities according to their sex, and to provide sufficient single sex facilities on a biological sex basis for everybody else, if it is possible to do so (note this should not be done be repurposing accessible facilities). Neither the 1992 Regs nor the EqA prohibits the provision of unisex facilities in addition to single sex facilities.

39. This solution will not be available to all employers or service providers because of the burden of cost and/or a lack of physical space. Where it is not possible, employers and service providers are caught between the prospect of discrimination claims brought by people who want single sex facilities and those brought by trans people who want to use facilities in their acquired gender. It can only be hoped that the Supreme Court will clarify the position, and that if it does not, that the Government will step in and amend the relevant legislation so that employees and service users can understand their rights and employers and service providers can understand their obligations.

25 February 2025

This article does not constitute legal advice or give rise to a lawyer/client relationship. Specialist legal advice should be taken in relation to specific circumstances. The contents of this article are for general information purposes only. No warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission. This work is licensed under the Creative Commons Attribution 4.0 International License.

Policing boundaries- social policing and legal remedies

A common retort to the concern that self-identification threatens women’s single sex spaces is to say that legal mechanisms would still exist to protect women from men who would abuse the system and to provide redress when those protections are breached.  This argument is flawed.  It fails to take into account the practical difficulties that would arise in invoking those provisions.  It fails to recognise how social policing would be diminished and women would be compelled to lower their boundaries.  

What is social policing? Any woman will recognise the steps that we take to keep ourselves safe in public spaces: telling a friend when we are making a journey alone, pretending to be on the phone when in a train carriage with a strange man, crossing the street if a man is walking behind us are but a few of the behaviours that many women practise as a matter of reflex.  Included in these behaviours are measures related to communal areas: if we see a male-bodied person in the women’s changing rooms at the gym we will challenge him and ask him to leave, we will tell a member of staff, we will warn other women entering the room, we will postpone undressing until he flees in embarrassment at his mistake or is removed by the gym staff. The chances are that it is an innocent mistake and that man poses no threat to our safety, but just like crossing the road when a man is walking behind us, we would rather not take the chance.

Self-identification forces us to lower our boundaries around all male people, whether genuine transwomen or men who would pretend to be one.  It asks us to mentally place that man in the category of “woman: unlikely to be a threat” rather than “man: a potential risk”, on nothing more than his word that he is the former.  This is not about whether transwomen are a threat to other women; it’s about the fact that the removal of objective criteria for what it means to be a transwoman makes it impossible in that scenario to draw that distinction.  If the response to “This is the ladies, please can you leave” is “I’m a woman”, then challenge to that assertion becomes difficult. Even the gym staff will probably have been coached that it would be discriminatory to ask a transwoman to provide a copy of their GRC, so best not ask the question.  It might be a lie, but who wants to be seen as a bigot for falsely challenging and humiliating a genuine transwoman? We saw this exact scenario play out in the Wi Spa incident.  Better not to challenge, not to tell the staff, not to warn other women and to think twice about returning to that gym.

What legal redress could individuals or businesses invoke to protect single-sex spaces?  Let us look at an example of a gym changing room.  

In criminal law, section 66 of the Sexual Offences Act 2003 creates an offence of ‘Exposure’ where a person (a) intentionally exposes his genitals, and (b) intends that someone will see them and be caused alarm or distress.  If a man is encountered in the female changing rooms exposing his genitals, a prosecution would be reasonably straightforward: the lack of legitimate purpose in being in a state of undress in that place creates a presumption that he would know that a woman would be likely to be caused alarm or distress by seeing male genitals.  Challenging a defence that he was acting with benign intent would not be difficult.  Little would be required from a prosecution witness other than to testify that they saw male genitals and that the man concerned did not immediately act to remedy his mistake.  

However, if that same person states that he is  a woman and has a legitimate purpose in using the changing rooms to get changed, then a prosecution becomes more difficult. The presumption of mal-intent falls away.  That is not to say that a prosecution is impossible: as in the WiSpa incident, if the intruder is in a state of arousal then it would be hard to argue lack of intent. But it is likely that the prosecution witness would face much more rigorous questioning by the defence: What did you see? How long for? Are you sure (s)he was aroused? Aren’t you just a bigot for being alarmed at sharing a changing room with this poor transwoman who just wanted to get changed?  

A two-tier system for offenders is effectively created: a presumption of mal-intent if the man identifies as such, and no presumption if he identifies as transgender; but in either case the women he encounters will have observed exactly the same male body.  It is well known that ‘minor’ sexual offending such as flashing is frequently a precursor to more serious crimes.  Self-ID creates a situation where men can commit those offences with impunity.

Civil law, and specifically the exceptions contained in part 27 of Schedule 3 of the Equality Act 2010 permit organisations such as gyms to provide single-sex facilities.  They are also likely to have a contractual term for the use of their gym that members are not to harass, alarm or intimidate other users, and in theory any member beaching this condition by using changing facilities designated for the opposite sex could be banned from the gym and refused re-entry without the gym unlawfully discriminating against him.  

However, as our earlier blog explains, anything other than a blanket enforcement of the single-sex space is likely to be unworkable in practice.  Not only does this create a minefield for the gym workers to navigate, but it makes it difficult for the female patrons to object as well.  It becomes impossible for a female patron to act on those feelings of unease that have caused many a woman to take precautionary measures: instead action can only be taken once the unwelcome conduct has taken place.  

There is no obvious civil law route for a woman to take direct action against a man for using female spaces or services.  Her best course of action would be to bring a claim for direct or indirect discrimination against the service provider in relation to her protected characteristic of sex and/or where applicable, her religious belief.  She could argue that the failure to provide appropriate single-sex facilities to change subjects her to a detriment upon which a claim for indirect discrimination can be founded.  If (as seems to be an emerging trend) the serviced provide designates the facilities as ‘male’ and ‘gender neutral’, she may have a claim for direct discrimination. 

But resorting to the law is expensive, time-consuming and can be emotionally challenging.  Some women will simply limit their engagement with sports, with recreation and with spending time outside of the home.  

“You say objective, I say subjective”, what is the legal test? A blog about harassment and protected beliefs

Before and after the recent Forstater v CGD (2021)  case, there was a torrent of speculative commentary about what this meant both for trans people and gender critical people when it came to harassment under section 26 Equality Act 2010. 

On 27th April 2021, barrister Robin Moira White wrote in the Independent: 

“It will mean, for example, that a person will be permitted to misgender a trans work colleague, indeed be legally protected if they do so. This puts employers in an impossible position where one employee is entitled to harass another, likely making the employer liable to the harassed employee for discrimination. It is both morally wrong and practically unworkable: employers will not be able to meet their duty of making workplaces safe to work in or public spaces safe to visit. “

Thankfully, this pessimistic prediction was proved wrong. The Employment Appeal Tribunal stressed that its judgment didn’t mean open season for people to harass trans people. It could have added “and the same goes for gender critical people.” 

In practice, what Forstater established was that both gender identity theory and gender critical feminism are protected as beliefs under s10 EA.

But what does that mean in practice regarding protection against harassment? Is “misgendering” (calling a transperson by a pronoun that signifies their biological sex) or calling someone a TERF (an offensive term to many)  or “bigot” unlawful harassment?

The classic and annoying lawyers’ answer… it depends! 

So how to decide if something is unlawful harassment?

First of all, some important caveats: I am talking about civil law, not criminal law. This isn’t about hate crime or other forms of harassment (say under the Protection from Harassment Act). 

This piece is not about whether it is right or wrong that something is considered unlawful harassment, but my best guess about what a court or Employment Tribunal will determine.

Context

This guidance is not relevant in all situations, only for those set out in the Equality Act. So it applies in work, education, political parties, larger membership organisations, some transport and some housing. It doesn’t apply between private people, say in the streets, unless one of them is working. That may be covered by other law, but is outside the scope of this blog. S29(8) states that, with regard to services to the public and public functions , neither the protected characteristics of religion and belief and sexual orientation are covered by the sections on harassment. ‘Harassing’ conduct related to religion or belief or sexual orientation which causes a detriment is covered by direct discrimination protection.

Which protected characteristics are covered?

Age, disability, race, sex, sexual orientation, gender reassignment and religion or belief are all protected against unlawful harassment. Marriage and civil partnership, and pregnancy and maternity, are not – although the latter is effectively covered against harassment via a different route in s17 and 18 Equality Act.

What does the law say ?

The Equality Act says the following:

“26 Harassment

(1)A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B’s dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—

(a)A engages in unwanted conduct of a sexual nature, and

(b)the conduct has the purpose or effect referred to in subsection (1)(b).

(3)A also harasses B if—

(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b)the conduct has the purpose or effect referred to in subsection (1)(b), and

(c)because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.”

So let’s break it down:

“Unwanted conduct” means the person alleging harassment didn’t consent to it. It is aimed at avoiding liability for genuine give-and-take banter. This does not mean the sort of bad defence used by obvious harassers to seek to exclude insults,  but rather a hug between old friends, affection between consenting romantic partners, or a genuinely equal debate about politics in the canteen between colleagues, for example. 

“Related to a protected characteristic” means you don’t have to have that characteristic to be harassed; but there must be a link between the words, actions etc and the protected characteristic. This sort of harassment isn’t about generic bullying.

“Conduct has the purpose or effect”. If the evidence shows the alleged harasser intended for the words or conduct to be harassing (usually determined as such because it is obvious for those words or conduct were the sort purposefully used to harass), that is then immediately proved.

If, instead, it is argued that, whether or not it was intended, the effect was harassing, then there is a further test in s26(4) Equality Act, as follows:

“(4) In deciding whether conduct has the effect referred to, each of the following must be taken into account—

(a)the perception of B [person alleging harassment];

(b)the other circumstances of the case;

(c)whether it is reasonable for the conduct to have that effect.”

In legal terms this is known as an objective, subjective test. The test is not just whether the claimant perceived harassment, but whether that is a reasonable perception. A person who is frequently late to work may feel harassed by their boss reminding them not to be late on consecutive days, but it would not be reasonable for the reminders to amount to harassment. On the other hand, a person who has ADHD but is rarely late may well be harassed by an employer singling them out every evening with the words “Remember to be on time tomorrow – we know how ditzy you ADHDers are!” 

“Violating dignity etc”

 This is exactly as described.. A court or tribunal needs to be satisfied that one of these descriptors could be applied to the situation evidenced.

In this piece I am not going to discuss s26(2) and (3), but it is worth noting the wording.

Very case specific

The result of this is that there are no glib equations to provide a bright line between conduct which is and is not harassment.   It really depends on context and framing.

In the context of the gender critical/gender identity context, my predictions are that: 

1.    Simply wearing a rainbow lanyard or putting one’s own preferred pronouns in your emails at work will not amount to harassing someone else;  but reporting someone to management who simply chooses not to, due to their beliefs, might well be harassment, 

2.    Setting up a Gender Critical or Gender Studies Research Group will likely not be an act of harassment; but campaigning against colleagues doing so might be harassment.

3.    Responding politely with one’s own views to a consultation about single sex or mixed gender facilities will not be harassment; indeed complaining to management about someone about their polite answer might well be. In the case of  Mbuyi v Newpark Childcare (2015), the Employment Tribual found in favour of Sarah Mbuyi, an evangelical Christian, who was dismissed by her employer, Newpark Childcare, for harassment following a discussion with a lesbian colleague in which Mbuyi said that homosexuality was a sin. The tribunal said that Mbuyi had not harassed her colleague as there was no evidence of unwanted conduct, because Mbuyi had given her views after being asked for them. 

4.  Calling a colleague a TERF or intentionally misgendering them may well be held to be harassment. This is distinct from accidental misgendering, because the choice of pronoun is unknown to the speaker or because the speaker’s disability causes them not to remember such things;

5. Discussing politely and personally on social media whether the law should be changed to self ID is likely not to be, unless there is evidence of risk that this may lead to actual discrimination or harassment. Some support for this contention is given in two cases not directly relating to harassment but addressing the risk of that happening going forward. The Court of Appeal in Ngole v Sheffield University 2019 (a case concerning an evangelical Christian student social worker who was expelled from his university course after  expressing “Biblical views” on social media about homosexuality) said at para 129  “such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate” . It was notable that the University had accepted there was no evidence of intention to discriminate against gay people by Ngole. This is in contrast to Dr Mackereth in DWP v Mackereth (2019) who made it clear that his particular Christian belief meant that he did have an issue using pronouns inconsistent with the service user’s birth gender [sic]. It later became clear that it also extended to using a title or style of address, Mr, Mrs, Ms, Miss etc inconsistent with the service user’s birth gender [sic]. Dr Mackereth failed in his claim. Whilst it is under appeal, my view is that an appeal is unlikely to succeed.

5.   Proselyting to colleagues or service users about one’s gender critical or gender identity beliefs is likely to be harassment, in a similar way  to cases involving religious proselytising like Haye v Lewisham BC (2010) and Amachree v Wandsworth Borough Council (2010)) .

In each of these cases, the judge considered the facts carefully and conducted a balancing exercise of the basis of the facts to determine whether the employer had properly considered the employee’s right to manifest their belief. In those cases where the employer’s decision was upheld, it was generally because of the actual discriminatory impact of the employee’s actions on other people. 

These cases also demonstrate that similar issues can be dealt with through good employer practice and employees understand what is expected of them. An employer can have a policy which places limits on discussions about religion or belief at work, but any restrictions on freedom of speech or manifesting religion or belief must be proportionate to achieving aims like protecting the rights of others or the reputation of the employer. 

So if confronted with a complaint or grievance by someone alleging unlawful harassment, what sort of questions should you ask to determine if conduct amounts to harassment?

1.    What was the context in which the alleged conduct occurred?

2.    What does the complainant say happened?

3.    What evidence is there of the consequences of the conduct on the complainant or others?

4.    Why do they say it has the effect they claim? This goes to context. 

5.    What does the respondent  say happened?

6.    What are the relative power positions of the two?

7.    What do any witnesses say?

8.    Is there any other relevant evidence?

9.    What do your office policies say about social media use, and what is deemed misconduct or discriminatory behaviour? Do those policies balance freedom of speech, belief and private life with legitimate employer concerns like risk of harassment of colleagues or service users?

10. Have there been previous warnings against this conduct and when?

Having gathered all this information, and weighed up whose evidence is more credible, it is for the decision maker to decide whether each of the allegations are more likely than not to have happened, and if so, to determine sanction. 

Employers and service providers also need to check their policies and Equality and Diversity training materials to ensure there is no harassing content in there. 

In summary, there is no simple equation of  X=harassment but Y does not. Ultimately, it is a fact-specific exercise, where freedoms of speech and belief are balanced against the necessity to protect from harassment in the workplace.

To Boldly Go – Why “going beyond the law” risks unlawful discrimination

Recently I have been seeing a common thread amongst equality activists. The idea of “going beyond the law”.

The implication is we can do more, be bolder and more generous to improve the lot of a particular minority. An  activist’s dream. 

It also suggests the law is outdated and we shouldn’t wait for Parliament to recognise what the law should be. And there is something in it: it was always open to good employers to refrain voluntarily from discriminating on grounds of sex, race, sexual orientation etc before the law demanded that of them.  

However, this may be a trap for the unwary.

Take the situation at Essex University culminating in the Reindorf Report and a subsequent open letter condemning it.

The Reindorf Report was commissioned by Essex University following complaints by two external invited speakers disinvited after complaints from trans activists due to their alleged gender critical beliefs. It is written by an independent specialist discrimination barrister. It sets out clearly (from para 140), the relevant law and regulatory framework concerning the conflict between trans activists and gender critical feminists. Whilst primarily about universities and academic freedom, it has useful transferable messages about conflict of rights, the potential for indirect sex discrimination, the threshold for determining unlawful harassment and serious concerns about the role of Stonewall.

A group of academics and students from the University and elsewhere promptly responded in the form of an Open Letter to the Vice Chancellor. Some are from the Law School and others are human rights academics. It is attached here: https://twitter.com/SVPhillimore/status/1395429598331129861/photo/1

It states “It is entirely appropriate for an academic institution to set an example to wider society by going above and beyond the baseline requirement for rights protection”

It seems an attractive idea. We can do better, go further, give greater rights. What is the harm?

What is missing from the letter is any recognition of the existence of, let alone balancing a conflict of rights. It is simply not mentioned.

The rights of the visiting speakers, let alone other people, especially women with gender critical beliefs at Essex University are wholly absent from the letter. It is as if they don’t exist. Given the context in which the Reindorf Report was written (including a reference to  a flyer circulated in the University bearing an image of a cartoon character pointing a gun and the words “SHUT THE F*** UP, TERF”) this is shocking.

 The letter approaches its subject from the exclusive perspective of one group of people with no recognition that the rights of any other group might be engaged. 

Yet in equality law, recognising and balancing conflicts of rights is bread and butter practice. There is plenty of caselaw from Ladele v Islington BC https://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html to Lee v Ashers Bakery Case https://www.supremecourt.uk/cases/uksc-2017-0020.html .

Even Prof Sharon Cowen, whose very pro trans views are well known, (in a paper she co-wrote with Sean Morris entitled “Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010 “ at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3849970), recognises the legal conflict of rights. In one of the few paragraphs I do agree with, they state “We conclude that the courts should maintain a flexible approach, while developing coherent principles, that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others. “

Even in ECHR law, there is recognition that whilst you can go beyond the law it cannot be at the expense of others’ rights.

As barrister Emma Stuart King states “It goes back to the positive/negative obligations distinction. Under the EA, there is only an obligation to refrain from discriminatory conduct, the only exception being in the case of disability where there are positive obligations to take action to prevent discriminatory impact.

Under ECHR case law, the threshold for requiring positive action is always set higher than that for negative obligations. And this is on a state level- where those positive actions are required by individuals you not only have to very carefully and clearly set them out but this can only be done where the required measures don’t negatively affect the rights of others. There really is no precedent in law for the types of positive obligations that are called for.”

I have previously  set out my thoughts on how policy makers make an environment supportive of one group without inadvertently making it worse for another.

There is scope for positive action, for example at s158 and s159 Equality Act. But it has to be applied very appropriately and carefully as Cheshire Police learned found out to their cost when it was determined that their well meaning use of s159 to recruit more Black and Minority Ethnic Officers  to address long-standing underrepresentation was flawed and discriminated against a white man. 

So when you see the exhortation to “go beyond the law” as a suggestion when making policy, think carefully, for it is a minefield for the unwary. Law is often written as it is for good reason.