Forstater v CDG Europe – what does it mean?

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Have you read the press about this case which has raised some interesting questions like what are the limits on a person’s right to express deeply held beliefs?

The case itself involved the topic of sexual identity with Forstater claiming she was dismissed from her job because she held and sometimes expressed her belief that a person’s sex is a biologically unassailable fact; put simply she thinks men who identify are women are still men and vice versa.

The key issue in the case was whether this belief was a philosophical belief and therefore a protected characteristic under the Equality Act 2010.

The Employment Appeal Tribunal has overturned the first instance decision and said yes, it was a philosophical belief. Whether something is a philosophical belief depends on whether (based on earlier case law) it is worthy of respect in a democratic society, it must not be incompatible with human dignity and must not conflict with the fundamental rights of others.

Some may say this decision is justification of free speech but to do so is to misunderstand the case.

What the case does tell is that –

In deciding whether something is worthy of respect courts will not and should not be concerned with the merits of the belief. Put simply whether the belief is right or wrong is irrelevant.

Only the most extreme beliefs can be deprived of protection on the ground they are unworthy of respect in a democratic society. For example, advocating violence, torture or hatred in its severest form.

It is not enough to deny protection as a philosophical belief that the belief is regarded as offensive, shocking or disturbing to others.

The Judgement is this case has been misinterpreted by many commentators but what we can say is that within broad limits employees must learn to live with the opinions of others. Even if they find those opinions offensive, shocking or disturbing, and unless those opinions are expressed in an offensive or disruptive way. And whether this is the case needs to be judged objectively.

Astons Solicitors
27th July 2021