In a significant judgment in Forstater v CGD Europe & others UKEAT/0105/20/JOJ, 10 June 2021, the EAT has overturned the Employment Tribunal’s finding that the Claimant’s gender critical beliefs fell outside the protection because they are not worthy of respect in a democratic society and are incompatible with the fundamental rights of others.
The EAT (Choudhury P, sitting with lay members) held that s. 10 of the Equality Act 2010 (EqA) should be interpreted conformably with Articles 9 and 10 of the European Convention on Human Rights (ECHR), which sets only a modest threshold for protection.
For the purposes of the so-called ‘Grainger V’ requirement (that a belief must be worthy of respect in a democratic society, not incompatible with human dignity, and not conflict with the fundamental rights of others in order to qualify for protected under EqA), the benchmark is set by Article 17 ECHR, which will exclude only the gravest beliefs akin to Nazism or totalitarianism. The EAT held that the Claimant’s beliefs satisfied Grainger V as they did not come anywhere near the Article 17 ECHR threshold.
The EAT also held that, at the preliminary stage of determining whether a belief is protected under EqA at all, courts and tribunals should not give detailed consideration to how that belief is manifested in the particular case.
Aileen McColgan QC and Katherine Taunton acted for Index on Censorship, which intervened in support of the appeal and made submissions on the proper approach to s. 10 EqA in light of the protection for freedom of expression under Article 10 ECHR.
The judgment can be found here.