The EAT decision in Forstater v CGD Europe & Ors

The Employment Appeal Tribunal has allowed Maya Forstater’s appeal. In a guest post, Russell Sandberg discusses an important decision.

The Employment Appeal Tribunal has handed down its decision in Forstater v CGD Europe & Ors [2021] UKEAT/0105/20/JOJ, allowing Maya Forstater’s appeal against the earlier employment tribunal decision ([2019] ET 2200909/2019) and remitting the case to a new tribune to consider the full merits of the claim.

The case has proved controversial in that the belief in question is the belief that sex is biologically immutable. However, as the EAT’s decision is at pains to point out, its focus is not on the merits of either side of what it calls the ‘transgender debate’ [2] but is rather on the technical question of whether the original employment tribunal erred in law by finding that the belief in question did not constitute a belief for the purpose of the Equality Act 2010.

The legal background

The Equality Act 2010 forbids discrimination, victimisation and harassment in relation to religion or belief, amongst other grounds. The definition of belief now used by employment tribunals originates from the decision in Grainger PLC v Nicholson [2009] UKEAT 0219/09/ZT, which held that the case-law of the European Court of Human Rights was directly relevant to the issue and distilled from this jurisprudence a five-fold test, which has been applied in subsequent cases.

The fifth and final test in Grainger is that the belief must be “worthy of respect in a democratic society, be compatible with human dignity and not in conflict with the fundamental rights of others”. This principle was articulated in the decision of what was then the House of Lords in R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15, in which Lord Nicholls gave the example that a “manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection” [23]. Cases following Grainger readily accepted that this condition had been met. There gave only hypothetical examples of when this test would not be met. In Grainger itself, for instance, it was suggested “a racist or homophobic political philosophy” would be excluded [28].

In 2019, two employment tribunal decisions concerning beliefs that sex is biologically immutable saw this fifth test being applied to dispose of the claim. In Mackereth v The Department for Work and Pensions & Ors [2019] ET 1304602/2018 a belief in Genesis 1.27, a lack of belief in transgenderism and a belief that it would be irresponsible and dishonest for (say) a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex were all held to be “incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals” [197]. And in Forstater, Employment Judge Tayler concluded in the lower tribunal that the “claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others” since it denied “the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned” [84]. Both of these decisions suggested that balancing of competing rights is a consideration under the fifth test.

The EAT decision

The Employment Appeal Tribunal, however, has found that the original employment tribunal in Forstater had erred in its application of the Grainger test for defining belief. The effect of their judgment is that the interpretation of the fifth test in Grainger only applies in extreme situations where the belief would be “an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms” [79]. It is noteworthy that the EAT relied heavily upon ECHR jurisprudence to reach this decision, finding that the belief fell under Article 9 ECHR.

It is also significant that the Employment Appeal Tribunal explicitly stated that the balancing of competing rights should not be a consideration when applying the Grainger tests. It is important to note that the Employment Appeal Tribunal’s decision simply related to whether the belief was capable of meeting the statutory definition. They did not address the substantive merits of the claim; that will now be addressed by the new employment tribunal the case has been remitted t

As the EAT pointed out, the key issue was what standard ought to apply in determining the fifth test in Grainger (para 57). Drawing upon ECHR jurisprudence, the EAT distilled “the principle that only the gravest violations of Convention principles should be denied protection” [62]. The judgment referred to “the extremely grave threat to Convention principles that would have to exist in order for a belief not to satisfy that criterion”, stating that:

“only if the belief involves a very grave violation of the rights of others, tantamount to the destruction of those rights, would it be one that was not worthy of respect in a democratic society” [63].

Turning to Article 9, the EATl noted that “there is a preliminary question as to whether the person qualifies for protection at all, or, to use the ECtHR’s terminology, as to whether the person ‘fall[s] outside the scope of protection'” [66]. This refers to the longstanding academic debate as to whether there are three stages in an Article 9 claim or two. The two-stage suggestion follows the stricture of Article 9 itself and contends that the claim must first show that there is an inference with the rights within Article 9(1) and, secondly, must show that such interference was not justified under Article 9(2). Those who maintain that there are three tests speak of a further prior test requiring Article 9 to be engaged.

The EAT’s decision supports this three-stage conceptualisation but noted that in many Article 9 cases the claim would quickly and automatically move to the tests of interference and justification because “it will be obvious that the religion or belief is one which falls within scope of the protection afforded by that Article, and the analysis will move swiftly to whether there was an interference with the right and, if so, whether that was justified”  [67]. However, it was noted that “it is important to bear in mind the extremely limited circumstances in which a belief would be considered so beyond the pale that it does not qualify for protection at all”. The Employment Appeal Tribunal held that the belief in this case did not fall under this category:

“It is clear from Convention case law that … a person is free in a democratic society to hold any belief they wish. … It is only in extreme cases involving the gravest violation of other Convention rights that the belief would fail to qualify for protection” [70].

This meant that the belief was protected under Article 9. The question was therefore whether the original employment tribunal had applied the definition of belief under the Equality Act in a way that was compatible with Article 9 [68]. The EAT held that it had not:

“In our judgment, it is important that in applying [the fifth test in Grainger], Tribunals bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be” [79].

In considering the original employment tribunal decision, the appeal tribunal was critical of how it had interpreted the Grainger tests. The EAT asserted that “it was not the Tribunal’s task to engage in any evaluation of the Claimant’s beliefs by any objective standard. Instead, it was to assess that belief on its own terms” [81]. It was critical of how the original tribunal appeared “to be straying into an evaluation of the Claimant’s belief”:

“In our judgment, it is irrelevant in determining whether a belief qualifies for protection that some of its tenets are considered by the Tribunal to be unfounded, or that it might be possible for the Claimant’s concerns to be allayed without adhering to or manifesting her belief” [85].

It was held that in considering such matters “the Tribunal could be said to have failed to remain neutral and/or failed to abide by the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements.” The EAT was adamant that “It is irrelevant that the Tribunal might consider the scientific foundations of the Claimant’s belief to be weak” [87].

It also stressed that the question of manifestation was not directly in point in determining the initial question of whether the definition of belief was satisfied: “the manner in which a person manifests their belief might, in some cases, be relevant in determining whether the belief has the requisite degree of cogency or cohesion to satisfy Grainger” but this is “no more than a part” of the analysis [77]. Importantly, it was stressed that the balancing of competing rights should not be a consideration when applying the fifth Grainger test:

“There is no balancing exercise between competing rights at this first stage, because it is only a belief that involves in effect the destruction of the rights of others that would fail to qualify” [101].

The EAT therefore held that “the only possible conclusion” following the “proper application of Grainger” was that the claimant’s belief did fall under the definition of belief for the purposes of the Equality Act 2010 [110].

Reflection

Forstater is an important decision. It will certainly be a controversial one, with the judgment feeding into what the Employment Appeal Tribunal referred to as “the debate in wider society about the rights of trans persons, which is often conducted in hyperbolic and intransigent terms” [2]. Yet, its importance lies in the technical decision it has reached. The EAT decision has made it clear that it is only on very rare occasions that the fifth test in Grainger will not be met. Previous decisions to the contrary by employment tribunals are no longer good law. It is arguable that the principle laid out here means that that the test is even less likely to apply now than under the previous hypothetical examples given in domestic case law or under the Convention: indeed, Strasbourg institutions have considered claims concerning Nazism (X v Austria (1981) 26 D&R 89).

It is now clear that the fifth test in Grainger cannot be used to dispose of claims that are offensive or which lead to harassment. This does not mean that there is now freedom to offend or harass. It simply means that claims concerning controversial beliefs will now be considered on their merits rather than being denied as being outside the definition of belief. As the EAT stated, the claim in this case will “now be remitted to a freshly constituted Tribunal to determine whether the treatment about which the Claimant complains was because of or related to that belief” [117].

The Grainger tests, and the human rights principles that they seek to distil, have a somewhat elastic character. What looks serious, weighty and coherent to one judge or employment chair might well not be considered the same by another. This, coupled with the nature of employment tribunal decisions not being binding on one another, has led to contradictory and inconsistent case law on the definition of belief.  Forstater provides both clarity and controversy. It means that the fifth test in Grainger will not now be used as expansively as it has been in cases concerning beliefs that sex is biologically immutable.

Russell Sandberg

16 thoughts on “The EAT decision in Forstater v CGD Europe & Ors

  1. Thanks for your characteristically clear analysis. As a point of information on your last paragraph, are EAT decisions binding in a way employment tribunal decisions are not? Presumably they do bind the lower tiers of the employment tribunal? Do they also have weight in other forums? Thank you.

  2. “The Employment Appeal Tribunal, however, has not found that the original employment tribunal in Forstater had erred in its application of the Grainger test for defining belief.”

    This sentence is ambiguous. It took me some time to work out why Mr Sandberg was apparently contradicting himself.

    The EAT did not err by applying the Grainger V test. That is presumably what Mr Sandberg meant. It would have been an error to apply Grainger V only if it were inappropriate to do so, but that was not the case.

    However, the EAT did err in HOW it tried to apply Grainger V, so the ambiguous sentence is wrong in this second sense. Otherwise, the appeal would have failed.

    Correctly, the tribunal attempted to apply Grainger V, but they applied the Grainger V test incorrectly.

    • Thanks. Sorry – there’s a typo in the sentence. The word ‘not’ should be deleted. It should read

      “The Employment Appeal Tribunal, however, has found that the original employment tribunal in Forstater had erred in its application of the Grainger test for defining belief.”

      I think in the first draft I wrote that it has ‘not agreed and found’ but in editing I messed this up.

      Hopefully Frank and David can correct this typo for me!

  3. Thanks. Yes – my understanding is that EAT decisions are binding on employment tribunals. In the absence of any higher authority, the decision is now authoritative on the particular point of law.

    • And even if they were not, it would be a very rash Employment Tribunal that ignored a relevant ruling by an EAT.

    • Yes what?

      The question was whether the EAT decision was also binding upon tribunals other than the ETs below it (or merely persuasive, in those other tribunals).

      The gist of the EAT decision was (colloquially) that one could apply Grainger V correctly to exclude the extreme beliefs of nasty, Nazi people like (say) Hitler and his chums, but not the moderate, common-sense beliefs of more ordinary people like Forstater (and Mackereth soon to follow, I hear) with perfectly ordinary, everyday beliefs, such as the belief that the essence of our immutable sexes was their provenance, this being the belief of Forstater, Mackereth, myself, various thinkers of earlier ages such as (some say) Moses, the Lord Jesus Christ, John Chrysostom, and the prophet Mohammed, JK Rowling, myself, and (last but not least) the wise, learned, scholarly judge who, applying the Common Law, gave the righteous, sane, noble and rational judgment in Corbett v Corbett [1971], a landmark case which counsel for the respondent in the EAT in Forstater unsuccessfully sought to impugn as “no longer good law”, an extreme position that I find simply terrifying.

      So, are you saying “Yes, we have a binding authority” now? Or are you saying, “Yes, we have no binding authority yet, except in lower ETs, we have no binding authority today”? Is our jurisprudence still totally bananas, or has it now been fixed?

      I suspect we won’t be out of the woods until a case like this has been appealed all the way to the Supreme Court, and the ruling in the EAT in Forstater upheld there.

      • Thanks. Yes – my understanding is that this decision will be authoritative and followed – unless a higher court rules otherwise.

        • As a practicing lawyer I am sure that this decision will be important and followed in Courts other than ET’s. Technically it is only binding on ET’s but all Judges like the law to be consistent across it’s different areas and a decision by the EAT is a decision from a High Court Judge.

          I would certainly use this judgment if I was defending a client accused of ‘Hate Crime’ merely because they expressed disagreement with Trans ideology. It wouldn’t be binding on a criminal court but as a matter of practice a Criminal Judge would certainly want to follow it’s reasoning.

          It may be that the employer will Appeal so we will have a higher judgment than the EAT

        • So would the decision be binding upon the High Court (including the Administrative Court), the county court, the family court and the first tier tribunals other than the Employment Tribunal, in all causes of action in which this or that belief was a belief for Equality Act purposes was at issue?

          • I think I’ve already answered this question. The decision is only binding on ET’s but will in practice be followed by other Cours

          • @ Neil Addison

            Yes. I see now that you had indeed already answered the question, very well indeed. Yours is the best comment on the page, IMO.

            As I said, I don’t think we’re “out of the woods” yet. I am old enough to remember when Corbett v Corbett was in court and in the news, and having heaved a huge sigh of relief that that case was (I thought) correctly decided. I tried to prevent the implementation of the Gender Recognition Act in 2005, long before JK Rowling was famous. People who believe that sex is real and immutable and matters are only slightly less in danger from intolerant heresy-hunters after the EAT decision in Forstater, not high and dry yet.

            It has taken 16 years to reach the present happier state of affairs than in 2005, in which those from a variety of schools of thought are now using the hashtag #RepealTheGRA on Twitter. This is just one small step in the right direction. Victory is not assured.

            (You can read about my unsuccessful 2005 legal challenge of the Gender Recognition Act on my blog, under the heading “Stop gender fraud!”.)

  4. With regard to whether the ruling is authoritative, my own experience in Australia might not be applicable to the UK. However, our rule of thumb was that these tribunals produce “lore” rather than “law”. In other words, although the tribunals are not, strictly speaking, required to follow whatever mistakes a previous one made, the need for consistency means that the decision of a higher tribunal has very strong persuasive force.

    • Hi Malcolm Tribunals in England are certainly not bound by each others decisions but Employment Tribinals are bound by decisions of the Employment Appeals Tribunal because its a ‘Senior Court of Record’ and decisions as in this case are made by a High Court Judge.

      I don’t know the exact position in Australia but from what little I know Tribunal decisions can be appealed to the State High Court and decisions at that level will be regarded as binding

  5. PS I think this generak discussion on ‘binding or not binding’ has now run it’s course, certainly so far as I am concerned

  6. Interesting to see how this case influences change? I wonder if philosophical beliefs will be protected by Hate Crimes law like Religion in E&W, although I had assumed s.14 HRA could be use to change this (Notwithstanding pending Scottish Hate crime & Law Commission suggestions)? Also what belief next – critical race theory is similar to critical gender beliefs, so that looks viable, as do some types of non-religious Zionism? We live in interesting times…

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