Dr P Wilkins v Defence Science and Technology Laboratory: 6000548/2023

EMPLOYMENT TRIBUNALS

Case No 6000548/2023

Between

Dr P WilkinsClaimant

Defence Science and Technology LaboratoryRespondent

Before

Employment Judge Self

Date 13 March 2025

JUDGMENT

[1]The Protected Disclosure detriment and automatically unfair dismissal claim (section 103A Employment Rights Act 1996) are dismissed upon withdrawal.

[1]The Claim for unfair constructive dismissal is well-founded and is successful.

[2]The Claim for harassment related to the Claimant’s philosophical belief is well-founded in relation to allegations 2.2.6, 2.2.11, 2.2.12 (in part), 2.2.13 (in part), 2.2.14, 2.2.15, 2.2.17, 2.2.18, 2.2.19

[3]The Claim for Direct Discrimination because of the Claimant’s philosophical belief is well-founded in relation to 2.2.4, 2.2.7, 2.2.9, 2.2.10.

[4]All other claims of harassment and/or Direct Discrimination are not well-founded and are dismissed.

[5]The Claims of victimisation as set out in the List of Issues are not well founded and are dismissed

REASONS

[1]The Claimant has brought a Claim in which he asserts that he has been unfairly constructively dismissed, directly discriminated against because of his philosophical belief and that he has been victimised. The Claimant was employed between 14 April 2008 and 17 February 2023 and at the end of his contract was engaged as an Innovation Partner. ACAS Early Conciliation ran from 17 January 2023 until 28 February 2023 and the Claim was lodged on 28 March 2023.

[2]There is an agreed List of Issues which reads as follows:

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any act or omission which took place before 18 October 2022 is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

[2]Harassment related to religion or belief (Equality Act 2010 s. 26)2.1 It is not in dispute that C holds a belief in the reality of biological sex as set out at paragraph 4 of the Grounds of Claim.

2.2 The allegations of harassment are as follows:2.2.1 On 31 August 2021, was discriminatory content placed on the Distillery blog by Lynn O’Donnell? (GoC, appendix, paras. 1-4);

2.2.2 On or around 2 September 2021, did R permit the above content to remain on the Distillery blog following concerns raised by C? (GoC, appendix, para. 4);

2.2.3 On or about 29 November 2021, was discriminatory content posted by Jon Cox and other employees on the Distillery blog? (GoC, appendix, paras. 5 and 7);

2.2.4 From around 29 November 2021, did R permit the above content to remain on the Distillery blog following concerns raised by C? (GoC, appendix, paras. 9-11(a) and (b));

2.2.5 On or around 13 January 2022, did R warn C, or speak to him in a way that made him feel that he was being warned, about his reporting of Distillery posts? (GoC, appendix, para. 11(b) and (d))

2.2.6 On 20 January 2022, on the Distillery blog, did Sally Davis and Roger/Becky Bennett denigrate employees with gender critical views by calling for them not to be tolerated if not prepared to change their ways and by describing them as rubbish employees? (GoC, appendix, para. 13)

2.2.7 From 20 January 2022, did R permit the above content to remain on the Distillery blog, following concerns raised by C? (GoC, appendix, paras. 15 and 16);

2.2.8 On 26 April 2022, did a post published by Lynn O’Donnell on the Distillery blog state that persons who share C’s philosophical belief was unfortunate? (GoC, appendix, para. 14);

2.2.9 From 26 April 2022, did R permit the above content to remain on the Distillery blog following concerns raised by C? (GoC, appendix, paras. 15 and 16);

2.2.10 Sometime before 6 June 2022, did R tell C that “liking” a gender critical post by the organisation Sex Matters on LinkedIn was a political act and offensive to a colleague? (GoC, appendix, para. 16(d));

2.2.11 Did Paul Kealey’s Distillery post of 30 June 2022 titled ‘Executive Team blogs: Wear your rainbow lanyard with PRIDE’ imply that those who share C’s philosophical beliefs were transphobic and did that email, and his follow up email of 3 October 2022, create a “hostile” etc. environment described by C at para. 19 GOC for those with gender critical beliefs? (GoC, appendix, paras. 19 – 23);

2.2.12 From 30 June 2022, did R permit the above content to remain on the Distillery blog following concerns raised by C, and delay responding to such concerns? (GoC, appendix, paras. 19-23);

2.2.13 On 3 November 2022, did Kit Barry post on the Distillery blog that holding the gender-critical view that “sex is biological and immutable” was unacceptable and incompatible with working at R? (GoC, appendix, para. 28);

2.2.14 Did Dr Kealey comment on the above post and state that R did not expect to hear gender-critical views in the workplace? (GoC, appendix, para. 29);

2.2.15 From 4 November 2022, did R permit discriminatory content to remain on the Distillery blog following C’s complaint of 3 November 2022, and take no action? (GoC, appendix, para. 30);

2.2.16 On 9 December 2022, did R ignore C’s complaint under the conflict resolution procedure and ask him to raise it directly with Dr Kealey, the alleged perpetrator? (GoC, appendix, para. 33);

2.2.17 On 13 January 2023, did Dr Kealey state inter alia by email that

2.2.18 On 20 January 2023, did Dr Kealey reject C’s complaints about ongoing harassment out of hand? (GoC, appendix, paras. 36 to 37); and

2.2.19 Did the draft blog post that Dr Kealey sent to the Claimant on 13 February 2023, amount to a retrenchment on Dr Kealey’s promise (made in meetings on 12 and 15 December 2022) to write a blog post that would resolve the issues. Did the draft blog post have the purpose or effect that it prevented C from expressing gender critical beliefs openly at work or at all on Distillery? (GoC, appendix, paras. 39).

(a) C had not highlighted any bullying or harassment and that he had not raised any “attacks” for a resolution; and

(b) openly expressing a gender critical view on the Distillery blog and in the workplace was not acceptable? ((GoC, appendix, paras. 35);

2.3 If the above conduct occurred was it unwanted conduct?

2.4 Did it relate to C’s philosophical belief as identified above?

2.5 Did the conduct have the purpose of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

2.6 If not, did it have that effect? In considering whether the conduct had that effect, the Tribunal will take into account the C’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect.

[3]Direct religion or belief discrimination (Equality Act 2010 section 13)3.1 The allegations of less favourable treatment and R’s response to each are as set out at para 2.2 above.

3.2 If the conduct above was afforded was C treated less favourably than:3.2.1 A hypothetical employee who did not share C’s philosophical belief, but who in all other material respects did not differ from C, would have been treated?

3.2.2 Alternatively, if documents disclosed by R evidence an actual such employee, was C treated less favourably than he or she was treated?

3.3 Was the less favourable treatment because of C’s philosophical belief?

[4]Victimisation - Protected Act (s.27(1), EA 2010) 4.1 Were the following protected acts for the purposes of s.27(1), EA 2010?4.1.1 2 September 2021: C’s email to R reporting the conduct set out at para. 2.2.1 above? (GoC, appendix, para. 3) (PD 1);

4.1.2 29 November 2021: C’s email to R reporting the conduct set out at para. 2.2.3 above? (GoC, appendix, paras. 9 and 10) (PD 2);

4.1.3 6 June 2022: C’s email to Susan Taylor reporting the conduct set out at paras. 2.2.5, 2.2.8, 2.2.9 and 2.2.10 above, and further reporting that colleagues were being allowed to aggressively attack him on the basis of his philosophical belief and that R had ‘picked a side’ on the gender issue leaving employees of R free to promote the ‘other’ (i.e., non-gender critical) side of the argument? (GoC, appendix, paras. 15 and 16) (PD 3);

4.1.4 17 June 2022: C’s email to Sue Taylor reporting that R was endorsing one side of the debate and discriminated against those with gender critical beliefs? (GoC, appendix, paras. 17-18) (PD 4);

4.1.5 27 September 2022: C’s email to Paul Kealey to report the previous course of harassment and specifically the conduct set out at para. 2.2.11 above? (GoC, appendix, paras. 19-21) (PD 5);

4.1.6 4 October 2022: Did C email Sue Taylor reporting that R’s one-sided approach to philosophical belief constituted unlawful discrimination? (GoC, appendix, para. 24) (PD 6);

4.1.7 14 October 2022: Did C email Sue Taylor to report his belief that R’s policy was to treat his philosophical belief as less important than other protected characteristics? (GoC, appendix, para. 25) (PD 7);

4.1.8 2 November 2022: Did C email Sue Taylor to report that R’s treatment of his philosophical belief as transphobic and its tolerating attacks on his belief constituted discrimination? (GoC, appendix, para. 27) (PD 8);

4.1.9 4 November 2022: Did C email Sue Taylor reporting the conduct set out at paras. 2.2.13 and 2.2.14 above? (GoC, appendix, para. 30) (PD 9);

4.1.10 18 November 2022: Did C resign and explain in an email to his line manager that he was resigning because of harassment under the EA 2010? (GoC, appendix, para. 31) (PD 10);

4.1.11 28 November 2022: Did C email Chief People Officer Robyn Wedderburn to summarise the above disclosures and to report that Dr Kealey’s blog post of 30 June 2022 (see para. 2.2.11 above) constituted harassment because it implied that C’s beliefs were unworthy of respect in a democratic society? (GoC, appendix, para. 32)? (PD 11).

[5]Victimisation - Detriment (s.27, EA 2010) 5.1 C alleges that R failed to respond to each of his eleven protected acts (as set out of GoC, 20 to 27) thereby causing him detriment. Each detriment set out below is alleged to have been afforded as a result of the prior disclosures that C had made. In particular C alleges that he was subjected to the following detriments:5.1.1 In response to C’s disclosures of 2 September 2021 and 29 November 2021 (PD 1) and (PD 2), set out at paras.5.1.1.1 Did R refuse to remove the alleged unlawful content complained of by C; (GoC, appendix, paras. 4 and 11(a));

5.1.1.2 Did R delay in responding to C’s complaints, namely, by failing to contact C until 27 May 2022; (GoC, appendix, paras. 11(d) and 15) and

5.1.1.3 Did R warn or threaten C, as set out at paras. 1.1.1 and 2.2.10 above?

4.1.1 and

4.1.2 above:

5.1.2 In response to C’s disclosures of 6 June 2022 and 17 June 2022 (PD 3) and (PD 4), set out at5.1.2.1 Neither taking nor proposing any action (or any adequate action) following the discussion between C and Ms Taylor on 17 June 2022; and

5.1.2.2 Taking no action (or any adequate action) in response to C’s report that R was allowing the promotion of discrimination against his philosophical belief? (GoC, appendix, paras. 17 to 19).

5.1.2.3 Taking no action (or any adequate action) by delaying a meeting between himself and C concerning the former’s blog post of 30 June 2022 until 7 September 2022; (GoC, appendix, para. 19);

5.1.2.4 Taking no action (or any adequate action) by ignoring C’s report of harassment raised during the meeting of 7 September 2022; (GoC, appendix, para. 19).

4.1.3 and 4.1.4, did R or its employees deliberately fail to act by:

5.1.3 In response and in relation to C’s disclosure of 27 September 2022 (PD 5), set out at para. 4.1.5 above, did R (Dr Paul Kealey):5.1.3.1 Fail to address (or fail to adequately address) C’s reports of harassment in his email to C of 3 October 2022;

5.1.3.2 In the same email misrepresent C’s disclosures as an attempt to challenge the protection in law of LGBT+ rights? (GoC, appendix, para. 23).

5.1.4 In response to C’s disclosure of 04 October 2022 (PD 6), set out at para. 4.1.6 above, did R or its employees fail to act (or fail to take adequate action) by taking no action in response to C’s report of discrimination? (GoC, Appendix 24-25).

5.1.5 In response to C’s disclosure of 14 October 2022 (PD 7), set out at para. 4.1.7 above, did R or its employees fail to act (or fail to take adequate action)? (GoC, appendix, para. 26).

5.1.8 In response to C’s disclosures of 18 November 2022 and 28 November 2022 (PD 10 and PD 11), set out at paras. 4.1.10 and 4.1.11 above:5.1.8.1 On 9 December 2022, did Ms Wedderburn decline to engage with C’s complaints and/or deliberately state or imply that no formal investigation into C’s grievance was necessary; (GoC, appendix, para. 33);

5.1.8.2 Did Dr Kealey in his letter to C of 15 December 2022 concede that employees with C’s philosophical belief had been harassed but refuse to act upon C’s reports of harassment; (GoC, appendix, para. 34);

5.1.8.3 Did Dr Kealey’s email to C of 13 January 2023 constitute a detriment because: a) He stated that C had “not in all of our discussions” …” raised any concerns impacting your ability to perform your job, you have not highlighted any bullying or harassment at work.” (GOC, appendix, paragraph 35(a)); b) His allegation that C’s “departure from R merely coincided with C’s protected disclosures” amounted to “a baseless accusation of lying or at least to ‘gaslighting’” (GOC, appendix, paragraph 38); c) He denied that C’s philosophical belief had been attacked; and d) He terminated C’s formal grievance prematurely; (GoC, appendix, paras. 35 to 38).

5.1.8.4 Did Dr Kealey in his email to C of 20 January 2023 continue to deny that C had raised any acts of harassment with him; (GoC, appendix, para. 36); and

[6]Victimisation (Equality Act 2010 s. 27)6.1 Were C’s disclosures set out at para. 4.1 above protected acts?

6.2 Did R subject C to the alleged detriments set out at para. 5 above?

6.3 If so, was it because C had done one or more of the protected acts?

[7]Constructive unfair dismissal7.1 Did R act in fundamental breach of contract:7.1.1 By failing to respond (or adequately address) C’s protected acts;

7.1.2 By taking a particular side in the gender debate in breach of its obligation to comply with the Civil Service Code as implied by s.5(8) of Constitutional Reform and Governance Act 2010;

7.1.3 By failing to have due regard to the need to eliminate harassment and discrimination and to foster good relations between people of different protected characteristics, in breach of the EA 2010;

7.1.4 By breaching its obligations as a public authority under section 6 of the Human Rights Act 1998, specifically in relation to Articles 9, 10 and 14 of the Convention; and

7.1.5 By discriminating against / victimizing C (GOC. Para.13).

7.2 Was the conduct in 7.1:7.2.1 calculated or likely to destroy or seriously damage the implied term of trust and confidence between C and R.

7.2.2 A breach of the express and implied term in the contract that the Respondent would comply with the Civil Service Code. R’s position is that this is not an implied term.

7.2.3 A breach of the implied term that R would provide a suitable working environment. R’s position is that this is not an implied term.

7.3 Did C resign because of a fundamental breach?

7.4 Did C delay before resigning and affirm the contract?

7.5 In the event that there was a constructive dismissal, was the reason or principal reason for the breach of contract the fact that C made one or more of the protected acts set out at para. 4.1 above or was the dismissal an act of discrimination under the EA 2010?

7.6 Was the dismissal otherwise fair within the meaning of s.98(4) of the ERA? 3. The Claimant’s discrimination complaints are presented as harassment or direct discrimination. The tribunal will determine these allegations in the following manner. In the first place the allegations will be considered as allegations of harassment. If any specific factual allegation is not proven, then it will be dismissed as an allegation of both harassment and direct discrimination. 4. If the factual allegation is proven, then the tribunal will apply the statutory test for harassment under s. 26 Equality Act. If that allegation of harassment is made out, then it will be dismissed as an allegation of direct discrimination because under s. 212 (1) Equality Act the definition of detriment does not include conduct which amounts to harassment. 5. If the factual allegation is proven, but the statutory test for harassment is not made out, the tribunal will then consider whether that allegation amounts to direct discrimination under the relevant statutory test. There are nineteen specific factual matters for findings to be made on first as acts of harassment and then any that are not deemed acts of harassment will then be considered as acts of direct discrimination. 6. There are eleven alleged protected acts and twenty-three allegations of victimisation plus consideration of the alleged unfair constructive dismissal. The philosophical belief in question can be summarised as a gender critical belief or in full reads as: “Sex is biologically immutable. There are only two sexes male and female. This is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or of a person who is neither male nor female. It is impossible to change sex. Males are people with the type of body which, if all things are working, are able to produce male gamete (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova) and gestate a pregnancy. Sex is much more important than “gender identity” or “gender expression”. 7. We have considered such pages as we were directed to within the 498-page bundle of documents. There were witness statements from: a) The Claimant b) Mr B Whitaker c) Ms S Taylor d) Dr P Kealey All witnesses made themselves available for cross examination. We have also carefully considered the opening notes prepared by both counsel, their closing statements, the subsequent document filed by each in response and their response to the recent court of appeal Judgment in Higgs v Farmor’s School

(2025) EWCA Civ 109

[8]The principal claim has appeared to be the philosophical belief discrimination claim. We set out here the legal background for such claims as it is through that prism that we need to assess the facts in this case.

[9]

Article 9(1) of the ECHR

provides that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

[10]Article 9(2), however, inserts a proviso in respect of the right to manifest the freedoms enshrined in Article 9(1). It provides that: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitation as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

[11]The relationship between these two elements of Article 9 was considered by the ECtHR in Eweida and ors v United Kingdom

2013 IRLR 231

which described the position in the following terms: “Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9(1), freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practise in community with others and in public… Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9(2). This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.”

[12]A person’s beliefs, whether religious or otherwise, are also protected under Article 9. This is clear not only from the fact that the Article guarantees freedom of thought and conscience in addition to religion but also from the express references to the right to ‘manifest religion or belief’. However, not every belief qualifies for protection. In this case that is not an issue because it is accepted by all parties that the Claimant’s philosophical belief does fall within the ambit of a valid belief following the EAT decision in Forstater.

[13]It is important to note that the right to ‘freedom of thought, conscience and religion’ in Article 9 is expressed to include a freedom to ‘manifest’ religion or belief. And in Kalac v Turkey

1999 27 EHRR 552

, ECtHR, the Court made it clear that, ‘while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion not only in community with others, in public and within the circle of those whose faith one shares but also alone and in private’.

[15]Article 9(1) spells out the forms that manifestation of one’s religion or belief may take — i.e. worship, teaching, practice and observance. But, crucially, the Court in the Kalac case concluded that Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising freedom to manifest one’s religion, an individual may need to take the specific situation into account.

[16]The issue was revisited in Eweida and ors where the ECtHR explained that even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief. So, for example, acts or omissions that do not directly express the belief concerned or which are only remotely connected to a precept of faith are to be regarded as falling outside the protection of Article 9(1). In order to count as a ‘manifestation’, the act in question must be intimately linked to the religion or belief. However, the manifestation of religion or belief is not limited to such acts: the existence of a sufficiently close and direct nexus between the act and the underlying belief held by the individual concerned must be determined on the facts of each case. In particular, there is no requirement on one to establish that he or she acted in fulfilment of a duty mandated by the religion in question.

[17]Article 10 deals Freedom of Expression which is also a qualified right and section 3 of the Human Rights Act 1998 provides that where possible to do so primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention Rights.

[18]Although the right to manifest one’s religion has been consistently recognised, it is also well established that inappropriate manifestation, such as proselytising or promoting one’s beliefs in an intrusive or offensive manner, can still be sanctioned by employers without breaching

Article 9 ECHR

, the Framework Directive or S.13 EqA. Although manifestation of religious belief includes the right to persuade others of the tenets of the belief in question persistent and unwanted persuasion may constitute a legitimate basis for disciplinary action.

[19]There is a distinction between disciplining an employee because of the employee’s beliefs and disciplining an employee because of the way those beliefs are manifested see Wasteney v East London NHS Foundation Trust

2016 ICR 643

, EAT.

[20]The Court of Appeal reviewed the case law in this area in Page v NHS Trust Development Authority

2021 ICR 941

, CA. The Court pointed out that the central issue in a direct discrimination claim is whether the act complained of was done ‘because of’ the protected characteristic (or whether the protected characteristic was the ‘reason for’ the treatment). It is thus necessary in every case properly to characterise the putative discriminator’s reason for acting. In a case where the reason is that the claimant has manifested his or her belief in some particular way to which objection could justifiably be taken, it is the objectionable manifestation of the belief, not the belief itself, which is treated as the reason for the act complained of. However, the Court cautioned that, if the consequences of the employee’s conduct are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself. The Court also endorsed HHJ Eady’s characterisation of the distinction in Wasteney as being between the manifestation of the religion or belief and the ‘inappropriate manner’ of its manifestation. The Court considered that this was an acceptable shorthand so long as it is understood that the word ‘manner’ is not limited to things such as intemperate or offensive language.

[21]Employers also have to deal with the situation where objection is taken to the expression of non-religious philosophical beliefs. There is a high bar for the exclusion of philosophical beliefs from the protection of S.10 EqA on the ground that they are not worthy of respect in a democratic society, and beliefs that are offensive, shocking or even disturbing to others can be as deserving of protection as religious convictions. When the public expression of such beliefs causes offence in the workplace, or opens the employer up to potential reputational damage, the question arises of whether the employer can take steps to restrain it. Gender critical beliefs or Gender Identity Beliefs are one such situation.

[22]In this case, of course, the issue is that employees of the Respondent made statements or comments on a forum provided and moderated by the Respondent which the Claimant asserts were harassing / discriminatory in nature. In addition, he complains that the Respondent when confronted by his concerns acted insufficiently or at all to cause the behaviour to stop.

[23]In Forstater the EAT referred to the EAT’s decision in Wasteney and the Court of Appeal’s decision in Page and directed itself that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner that is inappropriate or to which objection could reasonably be taken, bearing in mind an individual’s qualified right to manifest his or her belief under

Article 9 ECHR

. The tribunal concluded that F’s social media posts and other communications were little more than an assertion of the core protected belief, which could not be objected to even though it was capable of causing offence. In some cases, F had been provocative or mocking but this was the ‘common currency of debate’ and was not objectively offensive or unreasonable.

[24]In another appeal concerning ‘gender critical’ beliefs, Higgs v Farmor’s School (No.3)

2023 ICR 1072

, EAT, the EAT revisited the principles governing when an employer’s response to an allegedly inappropriate manifestation of a philosophical belief will constitute direct discrimination under S.13 EqA. Applying those principles to the present case, the EAT concluded that the tribunal’s findings on the reasons for the school’s actions 29 July 2024did not follow the correct approach. The tribunal found that the school’s reason for disciplining and dismissing H was its concern that she might be perceived to hold ‘homophobic’ or ‘transphobic’ beliefs. The EAT held that, putting to one side the dangers that can arise from the use of labels that might mean different things to different people, the difficulty with the tribunal’s analysis was that it did not engage with the question whether this was, nonetheless, because of, or related to, H’s manifestation of her beliefs. The EAT accordingly allowed the appeal and remitted the case on the basis that H’s conduct was a manifestation of her beliefs. It will therefore be for the tribunal to determine, in accordance with Article 9, whether the measures adopted by the school were prescribed by law and, if so, whether those measures were necessary in pursuit of the protection of the rights, freedoms or reputation of others.

[25]Although the EAT was reluctant to lay down general guidance for such cases, it set out the basic principles that underpin the approach to be adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and freedom of expression. a) First, the foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend. b) Those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Where such limitation or restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression. c) Whether a limitation or restriction is objectively justified will always be context specific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment. d) It will always be necessary to ask(i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question;

(ii) whether the limitation is rationally connected to that objective;

(iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and

(iv) whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter. e) In answering those questions within the context of a relationship of employment, regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience;

(v) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business;

(vi) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;

(vii) whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;

(viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients;

(ix) whether the limitation imposed is the least intrusive measure open to the employer.

[26]Higgs was considered by the EAT and handed down on 12 February 2025. The Judgment in this case had been drafted and was waiting for final sign off from the lay members but despite the delay in finalising the Judgment which had already accrued, as both parties had cited the EAT Judgment in their closing submissions EJ Self deemed it prudent to provide a short window for counsel to provide brief addendum submissions arising solely from the Higgs case. Two weeks were allowed and both parties lodged their submissions promptly. Those have been distributed to the members and a discussion has been held leading to this Judgment now being ready for promulgating. The matters set out there have been taken into account and considered against the facts of this case.

[27]At paragraph 55 of the Higgs Court of Appeal judgment, Lord Justice Underhill wrote as follows: “It is worth clarifying one point that came up in the submissions before us. There will be cases where the treatment complained of by the employee was ostensibly on the ground of conduct which manifested a religious or other belief but where it is found that the real reason was an animus against the belief in question. Such a finding may be straightforwardly because the employer’s account of its reasons is disbelieved; but it may also be because, as I put it in McFarlane v Relate Avon Ltd

[2009] UKEAT 0106/09

/3011,

[2010] ICR 507

, it is in the circumstances of the particular case “impossible to see any basis for the objection other than an objection to the belief which it manifests” so that “[the employer’s claim] to be acting on the grounds of the former but not the latter may be regarded as a distinction without a difference” (see para. 18). Neither kind of case is in truth a manifestation case at all, because the employer is motivated simply by the fact that the employee holds the belief. In a manifestation case proper the employer genuinely has no objection to the employee holding the belief and is motivated only by the conduct which constitutes its manifestation. Most claims of discrimination on the ground of religion or belief are likely to be genuine manifestation cases of this kind.”

The Facts

[28]The Claimant was employed between 14 April 2008 and 17 February 2023. He tendered his resignation by email on 18 November 2022 and worked his three months’ notice.

[29]The Respondent is an Executive Agency of the Ministry of Defence. It is staffed by civil servants who are all required to comply with the Civil Service Code which automatically forms part of a civil servant’s contract. One of the four core values is impartiality which includes not acting in a way that unjustifiably favours or discriminates against particular individuals or interests.

[30]There was a Conflict Resolution Policy which was to be used if an employee wished to complain about the way they felt they had been treated in the workplace. The various stages were as follows: Stage 1a – Issue is to be raised with first line manager Stage 1b – Issue to be raised by second line manager Stage 2 – At this stage consideration is given to whether an investigation is necessary, but it is still lies with the second line manager. Stage 3 – This is an appeal from Stage 2 and goes up to an Appeal Manager to determine. Despite having a formal process to go through the emphasis is to try and have an informal approach to resolve the issue as soon as possible, including via mediation.

[31]From September 2020 there was a document entitled “Line Manager’s Guide to Supporting LGBT+ Identifying Staff”. There were a number of contributors, but the author was Lynn O’Donnell. The executive summary suggested that it was for line managers who might wish to be better informed when supporting a LGBT+ individual and encouraged individuals to join the Dstl Ally Scheme or #PRISM which was the Employee Support Network for sexual orientation and gender identity which sought to support and promote inclusion and diversity in the workplace. Within that document (474) is the statement that “Transphobia” is defined as “the fear or dislike of someone based on the fact they are trans, including the denial/refusal to accept their gender identity.” The document had been drafted prior to the Employment Appeal decision in Forstater which was handed down on 10 June 2021. It had not been amended at all by the time the Claimant left the Respondent.

[32]The appeal in Forstater was handed down just under three months before the first allegations made by the Claimant in this case and that decision is important because the Claimant’s philosophical belief is the same as that put forward by Forstater in her Claim. The original decision in Forstater found that a gender critical belief did not satisfy the test to be a philosophical belief under the Equality Act 2010. The headnote of the appeal noted that gender critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, did not fall into the category of beliefs that would fall outside of a philosophical belief as defined in previous case law (Grainger). It followed therefore that Forstater’s belief (and by extension this claimant’s belief) “whilst offensive to some, and notwithstanding its potential to result in harassment of transpersons in some circumstances, fell within the protection under

Article 9(1) ECHR

and therefore fell within section 10 of the Equality Act 2010”.

[33]The belief that Forstater held and which the Claimant held is the belief that biological sex is real, important, and immutable and not to be conflated with gender identity. Prior to August 2021 the Claimant has not identified any issue at work relating to his belief or if he did, he did not raise anything at this Tribunal.

[34]Distillery was an IT and communications platform that was meant to enable staff to communicate and proactively share ideas / views. Posts on it could be from individuals or groups and were required to comply with the Distillery End User Agreement and Dstl’s ICT Acceptable Use Policy. Where concerns were raised, they would be dealt with by moderators. The moderators would appear to have been very busy. Allegations2.1.1 and

2.1.2

[35]On 31 August 2021 Lynn O’Donnell published a post which was headed “What’s it like being LGBT+ in STEM?”. She was a member of PRISM which was a group who would publish articles and blogs relating to LGBT+ matters.

[36]The blog started by answering the question posed in the title by indicating that it was sometimes pretty “disheartening”. The reason given was that Professor Sophie Scott had been awarded the 2021 Faraday Prize which is awarded for excellence in communicating science to UK audiences. Ms O’Donnell suggested that the reason why she found it was disheartening was because of Professor Scott being “well known for her non-inclusive views on trans and non-binary people, had written letters questioning transgender issues”, and had spoken outside of her expertise in a court case involving “trans children”. She then quoted three scientists who had made disapproving statements on the award before she wrote that following those there was the “inevitable TERF (Trans Exclusionary Radical Feminist) pile-on against those LGBT+ scientists who questioned the awarding of the prize”. Ms O’Donnell went on “In a wider context the constant questioning and debating of trans people’s existence has fuelled the increase in violence against LGBT+ people in this country”.

[37]On the following day, the Claimant raised a complaint about the article and in the drop-down menu selected “Abuse (Slander)” as the identifier and wrote to moderation as follows: “This post is deeply unfair to Professor Sophie Scott. The facts do not support any of the three allegations in the opening paragraph, particularly the third, where the judgement shows that Professor Scott spoke well within her area of expertise.”

[38]Seven comments were made in response to the blog: a) The first indicated that the news imparted was upsetting and represented one step forward and ten steps back; b) The second encouraged people to show support for LGBT+ by attending Salisbury Pride that weekend; c) The third said “We shouldn’t promote those who make others feel like being themselves… is not valid”; d) The fourth said “…it’s saddening to see that transphobes are becoming emboldened and things like this will just make it worse”; e) The fifth does not add anything of relevance to the issues in this case f) The sixth said “why can't people just live and let live? Especially those LGB people who have had to fight for their own rights but somehow think that the T plus should be ostracised”; g) The seventh does not add anything of relevance to the issues in this case.

[39]At 1415 on 1 September a moderator emailed Mr Gibb, Ms O’Donnell’s line manager, informing him that the blog had been reported as being slanderous and that it was currently hidden from other users pending a decision whether amendments would be made or whether the whole post would be removed. Mr Gibb was asked to speak with Ms O’Donnell re potentially editing the post. (87-88).

[40]Mr Gibb wrote back within the hour to say he was happy to challenge but required more information about the complaint. He pointed out that this was an area of expertise for her and not for him and if he were not armed with full details, it could simply “add fuel to the ongoing debate”. He opined that “To be honest, I just wish they would all accept that people have different opinions and leave it there.” The Tribunal do not detect any real enthusiasm from Mr Gibb as to the task he had been instructed to do.

[41]Following two further emails (85-86) on 2 September the moderators asked the Claimant which allegations and which facts he was referring to and the Claimant an hour later responded with an email in which he identified what he considered to be the unfair content. He went on in that email to say: “There are wider issues with the tone of the post and of the discussion that follows it. The implication is that anyone who holds gender critical beliefs should not receive public recognition for their work and therefore contributes to a hostile environment for colleagues who hold those beliefs even though gender critical views are a protected belief under the Equality Act. This means to say that those who hold those beliefs should not be recognised for their work and is legally equivalent to saying that, for example, black people should not be recognised for their work, a position that I'm sure would not be tolerated on Distillery.”

[42]On 3 September and following the Claimant’s response the moderator contacted Mr Gibb and set out more details about what was concerning the Claimant about the information given about Professor Scott. The Claimant was at no point identified as being the complainant. Further at no point did the moderator pass on the concerns the Claimant had expressed to the moderator about the post contributing to a hostile environment. We have received no explanation as to why that part of the feedback was not passed on.

[43]About four hours later Mr Gibb emailed the moderators to say that Ms O’Donnell had agreed to edit the post. Later that afternoon Ms O’Donnell submitted the revised document to Ceri Clark and to Mr Gibb and the latter indicated his view that it was “better now” and gave a suggestion as to how to make it more authoritative (91). Following on from some more admin the post was edited on the forum and Ms O’Donnell was told that it should be visible from 1552 on 7 September (89).

[44]The edits moved Ms Scott from being “well known for her non-inclusive views on trans and non-binary people” to “has been seen to hold / support views on trans and non-binary people that are non-inclusive” and further the allegation that she spoke outside of her expertise in a court case were removed. The general tenor of the report was that Ms O’Donnell was disappointed along with other scientists that the Royal Society had seen fit to honour Ms Scott with a prize taking into account the views that she held remained.

[45]The Claimant’s position about this post is further expressed in his statement at paragraph 18 was that: a) It created a hostile for environment for individuals who shared Scott’s beliefs. b) The post did nothing to educate and inform but was an ad hominem attack vilifying Scott and implied that those with gender critical views should not be recognised for their achievements. c) It unfairly mischaracterised gender-critical people as anti-trans bigots. d) He felt intimidated, sidelined, and unwelcome.

[46]The moderators did nothing about the Claimant’s complaint that the post had created a hostile environment. As previously stated, that allegation was never passed onto Ms O’Donnell or her line manager. Indeed there is no evidence that the moderators passed on that information at all to anybody. It is implicit although not expressly stated that the moderators were content with the amendment and allowed it to be edited and reposted (90). The Claimant did not make any further complaint about the blog when it was reposted at that time. Allegations 2.1.3 and 2.1.4

[47]On 15 October, a further article was published by Jon Cox, who was described as a “PRISM ally” in an article entitled, “Can we Talk about Dog Whistles”. This article dealt with another academic called Kathleen Stock who was said to hold the belief that gender identity is not more important than biological sex and that people cannot change their biological sex. The Claimant highlights in his statement that he took from the piece that Stock was alleged to be a bigot and had written and taught that trans people do not and cannot exist. He complained that the term TERF was used which he considered to be derogatory and that those with gender critical views were compared with white supremacists in the deep South of the United States.

[48]On 18 October, the Claimant raised an issue in the proper form via the moderators (103) indicating that it was “slanderous to say that Professor Stock means that trans people do not and cannot exist. She does not say or even imply that. Moreover, this feed is actively creating a degrading and hostile environment for staff who agree with Professor Stock.”

[49]On 4 November the Claimant raised an anonymous Freedom of Information Request asking for a copy of the Respondent’s strategy on Gender Identity and Gender Expression and to confirm what steps had been taken to update the strategy since the appeal Judgment in the case of Forstater which had been published in June. He defined what Gender Critical belief was. That Request was refused.

[50]Mr Kealey was Division Head of Cyber and Information Systems, but also held the role of Executive Director for PRISM, the employee support network for sexual orientation and gender identity. The aim of PRISM was said by Mr Kealey to be to support and promote inclusion and diversity within the Respondent and he stated that his role was the executive liaison between the Respondent and PRISM.

[51]On 22 October Mr Kealey emailed Mr Smith suggesting that the moderators were moderating / removing a disproportionate amount of LGBT+ topics and he asked that an eye be kept out for any such conduct during Intersex Awareness Day on 26 October.

[52]Nothing was done about the Claimant’s request for moderation until 15 November when the moderator contacted Steve Cox who was the line manager of Jon Cox (125-126) to ask for consideration to be given to edit or remove. The delay of five weeks was explained away as being due to “people being off”. The focus by the moderators was again solely on the parts that were said to amount to “slander”. That was undertaken and the line manager wrote back to say there would be some editing and after a further nine e-mails an acceptable form of wording was found, so far as the moderators and Jon Cox were concerned (121-125). It seems to have reappeared on 29 November and numerous posts were made about it (116-120).

[53]On 29 November, the Claimant wrote to Richard Murray Jones, who was the Diversity and Inclusion Lead, asking if he could share the thread with Professor Stock and stated that: “I also cannot see how allowing this thread to remain online can possibly be consistent with (the Respondent’s) duty not to create, allow or enable an environment which is hostile, degrading, or humiliating to those of our colleagues who hold “gender-critical” views and it would be good to have formal confirmation whether or not such people are welcome to work here … Happy to discuss.” That email was never replied to and no explanation for that lack of response has been tendered by the Respondent. The Claimant did receive formal confirmation from Mr Whitaker on 14 January 2022 that people with views or supporters of Kathleen Stock were welcome at the Respondent (136) and further that “they are open to hold and share those views”, but there is no evidence to suggest that flowed from the Claimant’s enquiry to Mr Murray Jones.

[54]On 30 November the Claimant posted that a “con” for working for the Respondent was that those who held a gender critical view and believe that those who also held those views do not deserve to be “hounded out of the jobs” would not feel welcome at the Respondent organisation. On 19 November Jon Cox complained to Messrs Smith and Kealey about the length of time it had taken the moderators to raise the complaint with him and that the moderators were one-sided. He considered it symptomatic of “a wider pattern of suppression of the LBQT+ community and trans non-binary elements in particular.” Smith and Kealey indicated that they would consider the points raised (105).

[55]On 23 November Mr Cox formally complained about the moderation process in respect of the blog which he had ghost written and suggested that the moderation system itself was discriminatory. He indicated that the complainant (the Claimant) was committing harassment and discrimination against people as a result of their gender reassignment status. It also became clear that Sally Davis was the actual author of the Blog. Mr Cox stated that “at the very least they (eg., the Claimant) need to hear this feedback”.

[56]The complaint was sent to Ms Wardman who seemingly after a conversation passed it onto Susan Taylor from HR (131). It was said that the message was because of Mr Cox’s specified wish for feedback to be given. Ms Taylor sought clarification and Ms Wardman clarified the double nature of the complaint i.e. the harassment by the complainant (the Claimant) and the discrimination from the moderators. (130).

[57]On 8 December there was a follow up from Ms Wardman which indicated that Mr Cox and Ms Davis felt very strongly about the Claimant’s intervention and she couched their concerns in ”less strong language” than expressed to her as: “The person is openly a transphobe who silences those who are trans or their allies and Dstl is supporting them with biased processes. The system needs fixing and designing by people who understand the issues and this person needs disciplining. Most importantly there needs to be an apology from both him and Dstl”. (133)

[58]Ms Taylor within her statement (para 10) explains that the Claimant was entitled to seek moderation of the post and she did not feel that the Claimant had done anything wrong. She explained that she felt uncomfortable with the Claimant not knowing of the complaint and came to the conclusion that he should be aware of the circumstances and that there had been a complaint and she thought it important that he be aware of the whole picture.

[59]On 12 January 2022 Ms Taylor cut and paste the email from Ms Wardman and forwarded it onto Mr Whitaker the Claimant’s Line manager (134). From the statements there appears to have been some further debate as to whether to raise the fact of the complaint with the Claimant, with Mr Whitaker questioning the need to do so but it was decided by Ms Taylor that this was the appropriate way forwards.

[60]The Claimant states there were two meetings with Mr Whitaker on 13, and then again on, 14 January. Mr Whitaker only speaks about the 14 January meeting in his witness statement but in the transcript of the recording of 14 January Mr Whitaker does speak of a conversation the previous day (136), so it is clear, and we accept, that there were two discussions.

[61]The 13 January meeting is dealt with at para 43 of the Claimant’s statement where he confirms that Mr Whitaker stated that the request for moderation had upset the poster but that he confirmed that the Claimant had done nothing wrong. The Claimant asked Mr Whitaker to go back and answer in effect the question that he had posed of Mr Murray Jones as to whether those with gender critical beliefs were free to work at the Respondent and to express their beliefs.

[62]There is a partial transcript of the meeting between Mr Whitaker on 14 January and the Claimant (136-139). It was recorded without Mr Whitaker’s knowledge, and we have taken that context into account. The messages conveyed by Mr Whitaker, having spoken with HR, were as a) People with the views of Kathleen Stock are absolutely welcome in Dstl and they are open to hold those views and share those views in a publicly respectable and acceptable way. b) Far more action is being taken on the other side of this discussion in terms of helping them come to an understanding and acceptance that those with a different view are perfectly welcome to hold those views in Dstl. c) There is no sense of the Claimant being disciplined in those circumstances. d) If the Claimant wanted to speak with HR that was fine, but they were right in the middle of dealing with the other side of this and so Mr Whitaker asked the Claimant to hold off for a few weeks before having that conversation. e) It was considered important that the Claimant was aware that there had been a complaint but also that matters were being addressed on the other side of the argument. f) The Claimant indicated that he was prepared to wait and see having been reassured that work was being done on the other side. g) Mr Whitaker identified that from his perspective that one side (the other side to the Claimant) was creating a hostile environment but the Claimant’s matters were a small part of it.

[63]The essence of Mr Whitaker’s discussion with the Claimant from Mr Whitaker’s perspective was to the effect that the Claimant had done nothing wrong, but he wanted to let him know that matters were being dealt with on the other side and (138) that they were “being helped to understand that people with differing views are perfectly entitled to hold those views”. The Claimant responded by explaining his concerns were that nothing was being done but “If there’s still stuff going on, so this is not the end of the matter, so watch and wait and see, then fine, I’ll do that.” (138) The Claimant appears content with the outcome of this meeting from the recording.

[64]On 19 January Ms Wardman informed Ms Davis and Mr Cox that Distillery was being taken down and relaunched with clearer explanations of what was and was not acceptable and provide the methodology for escalating complaints. (169-170). So far as the complaint about the Claimant: “The line manager of person A (the reporter of the post) has been informed about your complaint and your feedback has been passed on. I can confirm that person has not been involved with any previous or current complaints of a similar nature”. She goes onto say that now that feedback has been passed onto the Claimant and because changes are being made she hoped that brought matters to a close. Stage 1a of the Conflict Resolution procedure had been completed but if not content, then the matter can be raised to Mr King.

[65]On 25 January, Ms Davis expresses her dissatisfaction with the outcome and “feedback” being passed on. This is notwithstanding Mr Cox’s initial complaint indicating that providing feedback to the Claimant was the minimum that would be acceptable (168-169). Ms Davis called the request for moderation “bigotry” and that it amounted to “demanding the right to be transphobic and using that to try and silence the LBQT+ community on issues they disagree with is absolutely not in keeping with the Dstl policy. A full and unequivocal apology is required. Assurances that this will not happen again from the person and their management is required and a robust pathway to protect marginalised staff from the moderation process being weaponized against us in the name of bigotry is required from moderators and HR.”

[66]Ms Taylor indicates that the issue needed to be escalated to the next stage of the Conflict Resolution Process (167). We were told in oral evidence that the enquiry simply fizzled out after this and certainly there is no further discussion or correspondence about the same that came before the Tribunal. Allegation 2.2.6 and 2.2.7

[67]On 20 January Kit Barry posted on Distillery an item entitled “I don’t feel safe working for Dstl”. The complaint surrounded an item placed upon Glassdoor (a website where one could post reviews on their employer) by the Claimant anonymously that a “con” for working at the Respondent was that those with gender critical views were not made to feel welcome. Further the Claimant had made a FOI request that the Respondent provide a copy of their strategy on Gender Identity and Gender Expression and what steps had been taken to update the same following the Forstater case.

[68]In the 20 January post Kit Barry wrote: “I find myself in a situation where I no longer feel safe working for (the Respondent). Not I don’t feel safe to be myself at work, not I don’t feel I can bring myself to work but actually to the point of panic attacks, because some person or people who work at PDW thinks this is acceptable behaviour:”. Kit Barry identified an employee review which identified that pros for working for the Respondent was a good work life balance and a con was that those who hold a gender critical view would not feel welcome at the Respondent. This was a post made by the Respondent anonymously (141).

[69]In addition, the Claimant had made a Freedom of Information request asking for a copy of the Respondent’s strategy on gender identity and asking them to confirm what steps had been taken to update it in light of Forstater. It defined those beliefs as: “The belief that biological sex is real, important, immutable, and not to be conflated with gender identity, and that statements such as women means adult human female or trans women are male are statements of neutral fact and are not expressions of antipathy towards trans people or transphobic.”

[70]Barry went on “Members of a support group (PRISM) are now genuinely in fear of being doxed and targeted by the right-wing press” and “I’m genuinely afraid that the alt-right and actual Nazis and death threats will target me and mine because of the Distillery posts and D & I report”.

[71]The FOI was deemed threatening in a number of ways and whilst it was acknowledged that “gender critical beliefs” could be held, acting on the beliefs was still deemed to be harassment and discrimination. There were numerous comments on the post, a number of which were disparaging to those with gender critical views as follows: a) “I really pity people who behave like this. How empty must their lives be to belittle, berate and upset people” b) “No-one should feel unsafe in life just for being who they are. What sad, pathetic, little lives these people must lead to be so fuelled with hate that they make the time to write and submit this…Our trans community should not have to endure this…” c) “Whoever wrote this is angry and frustrated. But I know that so many people in the LGBT+ community feel similarly angry and frustrated – for different reasons. I have had conversations with both sides, and both use almost exactly the same language to describe their feelings.” d) The response to (c) was “I am sure this comment is well-meant. However both sides is not an acceptable approach. The two sides are not comparable … Gender critical people are claiming victimhood, but they’re not entitled to it” e) “I’m almost beyond words: this is totally unacceptable behaviour from this person. Sure, they are free to believe what they want in their own time but bringing those beliefs into the workplace using them to unfairly criticise, abuse and harass their work colleagues whilst claiming to be the real victim should be totally unacceptable.” The comments on this article which seem to all be written in work time extends between pages 143 and 159 of our bundle.

[72]The Claimant indicated that he made the FOI as he was trying to draw attention to the Respondent’s Line Manager’s Guide and his frustration at the slow pace of change. The Claimant states that once he realised that Barry was upset, he took down the post on Glassdoor, as it was not his intention to upset anybody (para 66 of Claimant’s statement). Whilst that may have been the Claimant’s intention, he clearly did upset a substantial number of individuals.

[73]The Claimant described the blog as shocking because he considered it suggested that gender-critical believers were dangerous but he did not really understand how his post and request had actually made the Claimant believe that “actual Nazis and death threats will target me and mine.” He identified a comment by Eleanor Rice, a close colleague of his, which is set out at para 46 (b) above, which had a particularly adverse effect upon him.

[74]On 14 February Distillery was taken down by Mr Bell. In doing so he suggested areas where it could be used positively but pointed out that some of the posts were unacceptable and made people question whether they wished to work for the Respondent anymore. When there was a Podcast close to the relaunch Mr Bell used members of PRISM to explain the benefits and the downsides of Distillery.

[75]On 21 February Distillery was relaunched and the Claimant indicated his dissatisfaction in respect of the fact that posts which he had complained about had not been taken down. Mr Whitaker shows understanding and some support for the Claimant’s position in a recorded conversation on 21 February (194-199).

[76]A document was published by Ms O’Donnell, the PRISM lead, in respect of online harassment and how to spot it. That document was very much from her own perspective with no examples from any other perspective. The Line Managers Guide is referred to as a further resource and as a document that “fills in omissions in policy and processes.”

[77]On 10 March Ms Rice, a colleague of the Claimant, reported the Claimant for liking a LinkedIn post relating to Gender Critical Beliefs which she stated was a “dog whistle to transphobia and transphobic behaviour”. The context that was put forward was her perception as to why Distillery was relaunched i.e., “due to a series of investigations into its use to bully and troll trans staff,” as such staff were openly fearing for their safety at work. Ms O’Donnell had been consulted about the complaint and had expressed the view that staff could hold a personal view but should not bring it to work and also suggested that as “GC beliefs were an ideology” it was a matter that needed to be referred to security and HR.

[78]That letter was sent to Mr Whitaker and Ms Friend who was Head of DASA and Mr Whitaker’s manager. Ms Friend sought clarity from Ms Rice who replied by saying that the Senior Leadership Team had recognised that the Respondent had a transphobic / homophobic culture that made people feel unsafe. We have seen no specific confirmation that was its view. The responses from Ms Friend are prompt and positive towards Ms Rice’s input.

[79]Mr Whitaker explained that his initial reaction was that he felt uneasy with what was being suggested and confirmed that belief by asking HR and security. The latter did not see it as a security issue. HR were happy for Mr Whitaker to deal with the matter. He also had discussions with Ms O’Donnell who provided an overview on gender critical beliefs from her own perspective. On 17 March Ms Rice was written to by Mr Whitaker and he thanked her for raising the issue indicating that he had spoken with HR and would follow up with the Claimant in due course.

[80]Mr Whitaker did so and reported that the Claimant was upset by the conversation. Mr Whitaker stated that he discussed the need to consider the impact that posts had on others and suggested that it was only right that he should be aware that somebody had been offended. The Claimant pointed out that when articles which were pro gender identity or anti gender critical were posted then there did not seem to be an equivalent amount of concern and the same standards were not applied. The Claimant asserted that Mr Whitaker described the liking of the post as a political matter. Mr Whitaker denied that. Allegations 2.2.8 and 2.2.9

[81]On 26 April 2022 Ms O’Donnell posted an article headed “Lesbian Visibility Day 2022”. Within that article is the view that “unfortunately there are a tiny proportion of lesbians who themselves are gender critical”. The Claimant asserts that was further evidence of a hostile environment.

[82]Mr Whitaker had indicated back in the January meeting that the Claimant would have an opportunity to speak with HR in respect of his perspective on freedom of expression of views and beliefs within the Respondent. He facilitated that introduction with Susan Taylor on 18 May (233), some four months later. On 23 May (232) the Claimant responded to Ms Taylor’s invitation to meet by email. In that response he stated: a) The issue had been causing the Claimant “a fair amount of stress and anxiety”; b) The issue was that “an intimidating, hostile, degrading, and humiliating environment had been allowed to develop within Dstl for people who hold the set of beliefs recently labelled as “gender-critical”; c) The environment as described was having an effect on the Claimant’s performance, career, mental health, and family life and that he would be surprised if he was the only one suffering from it in Dstl; d) Previous conversations with Mr Whitaker had indicated to the Claimant that Dstl were aware of the environment, and he sought confirmation that was correct and what was going to be done to improve matters as he had seen very little so far.

[83]The Tribunal considers this letter to be clear as to what the Claimant’s issues were. He believed that there is an unhealthy, harassing environment for those who held gender critical beliefs. The specific effect upon him is that that environment is having a significant effect upon him across a range of areas. The belief in issue is expressed and further information is offered to Ms Taylor about the beliefs if she wants it. Ms Taylor did not seek further information. It should have been clear to anybody reading that letter and especially a Human Resources professional that there was an issue developing that was having a deleterious effect on a member of staff in a number of important ways

[84]On 27 May Ms Taylor acknowledged that it had been a difficult time for the Claimant (236) and suggested that he email specific issues that were of concern to him so she could come prepared. She indicated that she was on leave for a while and so some delay in holding the meeting would be caused by this.

[85]On 6 June (237-238) the Claimant did this. He indicated that he was concerned about the “general trend” and wanted “some reassurance about what to expect in the future”. The Claimant raised the following issues and provided links to each of the offending posts: a) He raised the Sophie Scott thread which he said implied that those with gender critical views should not be recognised for their work and indicated that created a “hostile and intimidating environment” for those who share her views; b) He raised the Kathleen Stock post which he considered suggested that she deserved everything she got because of her gender critical views and the message was to create a hostile environment for those who held Stock’s views; c) In respect of a) and b) he expressed his view that he did not consider that those posts would be tolerated if they were focussed on any other protected belief or religion; d) He provided links (as he had done at a) and b) to six other pieces of material within Dstl posts / guides that were of concern to him in relation to the same general issue. e) He suggests that Dstl had “picked a side” and that his beliefs are not welcome in the organisation. f) He made the point that having been spoken to by Mr Whitaker he had given up reporting comments on Distillery. He accepted that Mr Whitaker had told him he had done nothing wrong but suggested that “it didn’t and doesn’t feel like that”. g) He raised the issue that he had recently been spoken to for liking a post and told that a colleague had found that offensive. He said that he believed that those on the other side of the argument were able to promote their view via Distillery whereas he was not. h) He stated that it was affecting him at work and at home and was having a deleterious effect on his mental health and that it was making him consider leaving Dstl. i) He stated that although encouraged to bring his whole self to work and that diversity is valued, Dstl appeared to be permitting colleagues to “aggressively attack (me) based on my protected characteristic”. j) Further Dstl had taken a decision to allow, promote and endorse an “attitude of open, hostile, and intimidating intolerance to my beliefs”. It is noteworthy that within this letter the Claimant identified the specific posts that he has asked the Tribunal to consider as being discriminatory and provided the Respondent with an opportunity to deal with the same. The Claimant’s views and concerns are clearly set out as well as the effect the situation was having upon him including that he may leave Dstl. The Claimant in this letter, and as he did at all material times, provided his concerns in a professional, structured, and courteous manner.

[86]The meeting took place on 17 June. There are no notes of this meeting on either side. The Tribunal find that somewhat surprising especially taking into account that written in the previous email and the alarm bells that really should have been ringing. Mrs Taylor stated that she was unable to recall the specific details of the meeting. Both parties accept that the Claimant raised his concerns with the Line Managers’ Guide. The Claimant recalls that Mrs Taylor sought to deny that the Line Managers Guide held any status as policy. The Claimant states that he told Mrs Taylor of the legal risk to the organisation due to the way he had been treated, but Mrs Taylor was blasé about such an outcome.

[87]On 17 June immediately following the meeting the Claimant specified particular parts of the Line Manager’s Guide document with his specific concerns and so provided more information for Taylor to consider. He went on to reiterate his concern that Dstl were endorsing one side of the debate without any issue whilst “allowing the promotion of discrimination against those who hold the other side”. He finished by saying: “I am taking away the message that Dstl accepts that gender critical beliefs are worthy of respect and that colleagues who hold express or live by those beliefs should not and will not be disadvantaged”.

[88]Ms Taylor responded thanking the Claimant for sharing his views and said she needed to do some reading, take some advice and chat to a couple of people and that she would revert to him in due course (241). Allegation 2.2.11 and 2.2.12

[89]On 30 June Dr Kealey who was a member of the Exec, and an ally of the PRISM Group issued an Executive Team Blog entitled “Wear your Rainbow Lanyard with PRIDE”. The essence of the blog was an expression of support from the Executive Team to the LGBT+ community. He stated that: “Lanyards and flags are important, but the community really needs your supportive engagement, they need your curiosity, and participation. National topics of focus include:  Political decisions by the UK Gov where transgender people will be excluded from the conversion therapy ban  A need to reform the Gender Recognition Act, provide equal protection for LGBT+ communities against hate crime, by making homophobic, biphobic, or transphobic hate a crime.

[90]He continued that “There are other important topics at the moment, like transgender people participation in sport, with recent significant changes and the PM stating he does not believe transgender women should compete in women's sport.”

[91]The Claimant wrote to Mrs Taylor on 30 June 2022 and the subject matter was Mr Kealey’s post. The Claimant raised the following points: a) He asked whether she thought it appropriate for a senior leader to use a Dstl official channel of communication to assert that there was a need to reform the Gender Recognition Act and to imply that staff should engage with their MP to do this; b) He asked whether it was appropriate for a senior leader to assert that recent changes in the issue of transgender participation in sport was going in the wrong direction via official channels; c) He said he saw it as a further example of Dstl taking sides; d) His view was that it was becoming clear that those with the wrong philosophical belief deserved to be discriminated against and by so doing were creating a hostile, degrading, and humiliating environment for those colleagues who held those beliefs.

[92]Mrs Taylor asked if she could share the email with Mr Kealey and the Claimant confirmed she could. Mr Kealey responded soon after asking if the Claimant would like to meet for coffee / tea and stated that he was “keen to ensure I understand and can represent all Dstl views and would like to make sure I am representing you.” (248)

[93]The Claimant agreed to think about whether or not he wanted to and/or whether it would be worth meeting up with Dr Kealey. On 4 July, the Claimant decided that he would be willing to meet, but indicated to Mrs Taylor that he was “on the verge of resorting to the Conflict Resolution Process over these now long running issues” (256). The reality was that any of the complaints to date could have been placed into that formal process either by the Claimant himself or by somebody at the Respondent. Indeed, Taylor did that later in the chronology as she recognised that.

[94]On 18 July Dr Kealey indicated that he was on leave from 28 July but would like to meet up before then for a chat about matters of concern to the Claimant. Both individuals sought to find a time before annual leave but were unable to do so (258). The Claimant appeared to understand that situation. Dr Kealey’s PA suggested dates on 16 August but for reasons that are not apparent in the bundle or from the oral evidence the discussion did not take place until 7 September.

[95]Part of the conversation on 7 September is recorded. We take into account the fact that the Claimant was aware that the meeting was being recorded and Mr Kealey was not, as we have done for each meeting that was clandestinely recorded. The discussion itself is fairly opaque and when time ran out the Claimant offered to send Mr Kealey an email with a list of precisely what it was that he considered was creating the hostile environment for him because of the beliefs he held as Mr Kealey was struggling to grasp precisely what that was at the meeting (“I’m trying to get my head round what environment of unsafeness we’ve created.”) (280).

[96]On 27 September the Claimant sent a clear email to Mr Kealey with embedded links with what he perceived was wrong with the Respondent and indicated that he deemed it unacceptable to post in the ways that are at the core of this claim when the belief being criticised were “reasonable, widely held, worthy of respect and protected under the Equality Act”. He then flagged up that it was, in his view, unsurprising that this was the case when, what he described as the Respondent’s official policy (Line Manager’s Guide to support LGBT+) was in situ. That document was written by the LGBT+ community in September 2020 for the benefit of all and Lynn O’Donnell was one of the authors. In that document Transphobia is defined as “The fear and dislike of someone based on the fact they are trans, including the denial/refusal to accept their gender identity” (our emphasis). He concluded that all of the above had led to a hostile, intimidating, and degrading environment for those who had held those beliefs and that Mr Kealey’s blog in June had contributed to this environment by “hinting” that those who oppose the banning of transgender conversion therapy, don’t support reform of the Gender Recognition Act to enable self ID, or who share the view that there are some women’s sports that biologically male transgender women should not compete in were transphobic and had no place in the Respondent.

[97]The Claimant indicated that it was a problem that needed urgently addressing as it had been a year since the Claimant first raised it and nothing had changed. The Claimant made it clear that he was not criticising either Mr Whitaker or Mrs Taylor.

[98]Mr Kealey was absent from work and responded on 3 October (285). He indicated that he had not had time to click through the links but invited discussion on them. The Tribunal can understand why the Claimant would have been disappointed at this response as the Claimant had gone to the effort of setting his concerns out logically with links (again) in order to assist Mr Kealey’s understanding only for him not to look at the points raised. Mr Kealey described the Claimant’s conclusions re his June blog as “more complex than my Blog warranted” and indicated that he was not telling people what view to have but was trying to promote people taking part in the national debate on those topics. He then wrote as “It is clear that members of the LGBT+ plus community have specific protection under law, and I think it is important we do not consume work time challenging that protection or looking at the edges to have debate. This is not my job or (sic) yours to do. We are after all at work to deliver for the MOD and that simply means letting people be themselves- not spending time / energy challenging who they are. Equally as we said it is not for me to ask people, e.g., yourself, their views. If a personal non-expressed view may be contradictory to the rights LGBT+ people have - that is OK, but it is not OK to express such views in the workplace. So, people should feel safe with any personal view but must not feel empowered to express any view.”

[99]Later that morning the Claimant replied stating that Mr Kealey’s views were “very clear” and thanked him for being so honest. He indicated that he would be happy to talk if Mr Kealey found time to look at the points raised. In his statement the Claimant reflected that: a) The fact that Mr Kealey had not had time to follow the links was frustrating and indicated to him that Mr Kealey did not really care about the points raised; b) Whilst clear on the protections afforded to LGBT+ staff, he did not seem to understand that the Claimant’s beliefs were also protected; c) Gender-critical views could not be expressed at work but that those promoting and supporting the LGBT+ community could, which indicated a view that the Claimant’s views were unworthy of respect and needed to be hidden.

[100]Mr Kealey at paragraph 53 of his statement suggests that he really meant that “we should not promote and transmit without care views that could bully and intimidate other people.” The Tribunal would observe that whilst that may be what Mr Kealey meant, it was certainly not what he wrote.

[101]Later that same day Mrs Taylor (288) indicated that Mr Kealey still wanted to continue the discussion. She indicated that she believed that the Claimant was at stage 1b of the Conflict Resolution process, and he was speaking to the most appropriate person about the issues he raised. This was the first time any indication had been given on any side that the formal Conflict Resolution process was considered to be in play and it came from Mrs Taylor who had clearly come to that conclusion from her dealings with the Claimant.

[102]The Claimant wrote back on 4 October and indicated his dissatisfaction with Mr Kealey’s response. He queried whether Mr Kealey actually wanted to talk further and pointed out (289): a) Mr Kealey had not bothered to read the links so as to fully understand the Claimant’s position and had openly stated that views contradictory to LGBT+ should not be expressed in the workplace which would encompass those with gender critical beliefs and those with religious beliefs too. He identified that as another “distortion of equality legislation” and an example of the problem he was highlighting. b) The absurdity of categorising legally protected beliefs into those which were good and those which were bad, and that the problem was Mr Kealey was not being even-handed. c) He pointed out that if being yourself led to a hostile environment then that was not consistent with the law. d) He indicated that as no resolutions had been identified they were probably at Stage 2 investigation territory.

[103]Later that day the Claimant applied to Ploughshare for a job and the Claimant stated that he did so because of Mr Kealey’s “disdainful” response on 3 October detailed above. The Claimant had been considering becoming an HGV driver for a period before that.

[104]On 5 October Mrs Taylor wrote to the Claimant and asked him how he was fixed for a meeting and a meeting was set for 12 October. The Claimant recorded that meeting (293-312). The Tribunal have considered that meeting and the salient parts are as follows: a) (293) The meeting was called because of the Claimant’s suggestion that the situation needed to be escalated. b) (293) The Claimant made it clear that contrary to what he considered Mr Kealey thought of him he did not wish to come to work, spout off his gender critical views offending people and the Claimant made it clear that he did not really feel the need to state his views at work at all. c) (294) What the Claimant wanted was Mr Kealey to accept that there was a problem with there being a prevailing view against those with gender critical views and that even though those views were unwelcome to the LGBT+ community they were still protected. Removing posts that had been previously complained about would also assist. d) (295) The Claimant wanted a situation where it was clear that not only holding such views was acceptable but so was respectful expression in the workplace and on the flip side that it would not be acceptable for those on the other side to make the Claimant feel uncomfortable. e) (295) There needed to be clarity that the Claimant’s belief was protected in exactly the same way as other protected characteristics were. The Claimant pointed out that if there were posts on the forum which attacked a specific race then they would not be maintained. His belief was no different in legal terms to race in terms of protection. f) (298) When the Claimant indicated that he did not believe there was any hierarchy or prioritisation within protected characteristics, Mrs Taylor stated (remarkably taking into account all that had been written before) “So you’re coming from the place where you believe that your beliefs are protected” and when the Claimant confirms that she responds “Okay, because that is something that perhaps we might challenge”. g) (299) Mrs Taylor promises to look at seeing whether certain posts could be taken down as that was something “tangible” she could do, although ultimately it was not in her gift. h) (301) Mrs Taylor suggested that if the matter needed to be escalated then it should go to Robyn Wedderburn, the People Director. i) (305) Mrs Taylor confirmed that the reason why the complaint by Cox was raised with the Claimant via Whitaker (Allegation 2.2.5) was because “Some of the people that were involved at that point were being really militant about things. We didn’t want you to be in a situation where there was an explosion of some of their unhappiness.” This would seem to indicate that management decisions were being driven by the militancy of some within the LGBT+ group. j) (308) Mrs Taylor suggested that the Claimant’s situation may have been an unintended consequence of the Respondent “piling all your resources into fixing that issue, which is what I think we have done on the LGBT+”. The Claimant followed up by pointing out that it would be wrong to have “such an enthusiastic and wholehearted endorsement of these people's views, that any other views become intolerable.” k) (308-309) When the issue of an employment tribunal claim was raised Mrs Taylor seemed very confident that there were no cases that would end up in a discrimination case as she thought matters could be resolved. The Claimant indicated that he did not believe there was any real will within the Respondent to try and resolve matters and that litigation was entirely likely. This was another example of those dealing with the matter for the Respondent’s insouciance towards the issues raised by the Claimant. l) (311) The Claimant confirmed that the matters under discussion were causing him adverse consequences. m) Mrs Taylor intimated that Mr Kealey was generally wordy and at times clumsy with the words he used and that whilst he did not seem to “get” the Claimant’s points they had a reasonable prospect of landing at some point if the Claimant persevered.

[105]On 14 October 2022, the Claimant wrote to Mrs Taylor (319) outlining his take aways from the meeting which were: a) The Respondent was taking a different approach to “belief” as a protected characteristic than to other protected characteristics. b) As this issue affected only a small number of staff it was seen as a lower priority than other matters. c) The Respondent might challenge whether gender critical beliefs were indeed protected. d) Ms Wedderburn was the person to escalate to, if necessary, but the Claimant needed to be clear about the resolution sought. e) A new Line Manager’s Guide was imminent which was hoped to be less confrontational. f) Mr Whitaker raised the issue of others being upset because of colleagues’ potential reactions.

[106]On 31 October Mrs Taylor responded. The Claimant had asked her to indicate if any of his take aways were wrong and she did not do so in this communication. She asked him for the specifics of what his belief was although she must have been aware from previous discussions that it was aligned with Gender Critical beliefs. The Claimant had offered Mrs Taylor the option of more information far earlier in their discussions.

[107]On 2 November, the Claimant set out his belief in precisely the way that it is set out in his Claim Form as follows: “Sex is biologically immutable. There are only two sexes male and female. This is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or of a person who is neither male nor female. It is impossible to change sex. Males are people with the type of body which, if all things are working, are able to produce male gamete (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova) and gestate a pregnancy. Sex is much more important than “gender identity” or “gender expression”.

[108]The Claimant explained that: a) Whilst he held those beliefs, he did not feel the need to express them at work. b) He is happy to work with those of the opposite view to him. c) People who hold the beliefs should be as protected as those who oppose those beliefs. d) But the Respondent had essentially defined those beliefs as “transphobic”, and Mr Kealey had stated that transphobia had no place at the Respondent. e) By logical extension, the Claimant has no place at the Respondent as a holder of those beliefs. f) Meanwhile those with the opposite beliefs are given freedom to express those beliefs to “personally attack, misrepresent and shame people they disagree with”. g) The Claimant indicates that he is content to continue with the debate if others are. Allegation 2.2.13, 2.2.14 and 2.2.15

[109]Around the same time during a “Townhall” meeting the question was asked anonymously “Can one hold a gender-critical view (that sex is biological and immutable), respectfully lived out, and work at (the Respondent)?” The Claimant asserted that it was not him who posted the question. We accept that evidence. We note that there were 2 “likes” of the question which would seem to indicate that there were others interested in the question.

[110]Kit Barry sought to answer the question in a post on Distillery on 3 November. The position stated was that “Asking a question on Slido that explicitly states gender-critical beliefs is abusive”. The point made in the post is that if the question did not have the bracketed part (as set out at para 89 above) then that would be an acceptable question but the bracketed part made it unacceptable because it was saying that if your gender identity does not match the sex assigned at birth is not really the sex they live as and was thereby harassing for trans staff.

[111]The Tribunal do not see how those words convert the question from acceptable to unacceptable. The bracketed words are a central part of a gender-critical belief and so providing a part of the definition is adding nothing in our view. The question is either acceptable or unacceptable taken as a whole.

[112]Inevitably there are a number of comments that flow from the post by Kit Barry: a) Mr Kealey gives thanks for the post which he describes as “clear guidance for people less aware of this topic.” He purports to answer the question by saying that there is no requirement to hold a “certain view” to work at the Respondent. That is not an answer however to the question posed. He goes on: “…expressed views in the workplace must comply with discrimination laws. So, we do not expect people to promote / state gender critical views, as written in the question, in (the Respondent). Importantly the limitation does not stop people either working at the Respondent or being able to complete their work. Therefore, we do not ask, and we would not expect to hear gender criticality in the workplace.” b) The next post read “I struggle to articulate the difference between gender critical and transphobia as far as I can tell it is just people trying to make up excuses for transphobia? I saw this question and was immediately upset that someone was asking that question especially in a way worded to be intimidating…” c) Mr Kealey responds, “I have met some people who are also confused / worried that their views mean they can't work here. Dstl do need to support them to understand the law, and understand their rights to hold, but not express views so although I wish we did not have these questions I hope today we can be clear we have answered it and stated clearly they can work here and should not feel threatened and therefore do not need to ask again.” d) Another comment read “I'm confused by the “respectfully lived out” part of the Slido question. Promoting gender-critical (read as transphobic) views is by definition disrespectful.” e) Somebody answers that by saying “respectfully lived out, to my understanding when it comes to bigotry, is for it to be unmentioned or unacted upon.” f) Another comment suggests that the question demonstrated “sheer arrogance of someone who rather than keep their belief to themselves, feels the need to impose their gender critical views on others... perhaps the question asker should consider whether the right to air their gender critical view is really that important or whether they're being just a tiny bit self-absorbed”.

[113]On 4 November Ploughshare invited the Claimant to an interview and the Claimant indicated that on account of what was going on he was resolved to take the role if offered.

[114]Mrs Taylor offered the Claimant a further meeting. On 4 November, the Claimant raised the point of the Distillery post described above and provided a link to it. He pointed out errors in it from his perspective, reminded her that the conclusion that gender critical views were and must be tolerated in a pluralistic society (quoting Forstater) and indicated that this was another clear example of the Respondent creating an environment that was harassing. He indicated that he was considering whether to reply, report, or ignore. (331)

[115]Mrs Taylor responded to say that the post was being “monitored” whatever that means; that she read the post in a slightly different way to the Claimant (undisclosed as to how she had read it); and that she thought it would be unhelpful to get involved given the tone of the discussion (unclear as to who it would be unhelpful for). The Claimant contends that he believed he was being warned off and that he should do nothing.

[116]The Claimant sent back an article and summarised his position as being that “Employees on either side of this debate can't say what they want about it to others. Deliberately misgendering someone is likely to amount to harassment, as would calling someone transphobic simply on the basis that they hold gender critical beliefs.”

[117]It appears that there were some requests for moderation and there was a request that amendments be made to the post above. It is not clear what was ultimately done (337-338).

[118]On 11 November PRISM announced that changes were being made to protect LGBT+ staff and make them feel safe from individuals querying “our existence or identity being debated” and unhelpful and unnecessary behaviour. That was within ten minutes supported by Mr Kealey.

[119]The Claimant was interviewed by Ploughshare on 11 November and was offered and accepted the role on 17 November. He resigned on 18 November in an email to Mr Whitaker copied into Mrs Taylor his reasoning was as follows: “The primary reason why I have looked for and found employment outside of Dstl is the hostile, intimidating, and degrading environment that has been allowed to develop within Dstl for people of my belief. This has been a problem for months and one that I have repeatedly highlighted. It has become increasingly clear that Dstl does not see addressing this issue as a priority. Recent private and public statements by senior leaders in Dstl have only reinforced the environment. Since this issue first emerged over a year ago it has caused me considerable stress and anxiety and has had an impact on both my work and private life.” (343) Mr Whitaker was thanked for his support.

[120]Mrs Taylor’s response on 22 November was that “You knew that I would be disappointed in your news Peter. That said, I do recognise that you have found the last 12 months difficult”. The Claimant responded with his concerns re Mr Kealey and the fact that “those on the other side of the debate are apparently free to not only to share their beliefs but to harass and bully those who do not agree with them. It is Dstl’s unwillingness to recognise or address this has made me feel that I have no choice but to resign.” The Claimant expressed the wish that his grievance would progress during his notice period as he wished to exhaust that process.

[121]On 25 November (347) Mrs Taylor wrote to Ms Wedderburn, the Director of People attaching the resignation email trail indicating that the Claimant may escalate his complaint to her at Stage 2 and noting that this was the second resignation as a result of what she described as “PRISM Distillery spats”. We would have thought that to lose two staff in such a way should have been a matter of clear concern to the Respondent.

[122]On 28 November, the Claimant emailed Ms Wedderburn setting out his worries and concerns and providing links where appropriate to articles / blogs / posts that he had previously highlighted. He did so at the express suggestion of Mrs Taylor (353). So far as resolutions were concerned, he sought the following: a) The Distillery posts that singled out individuals because of the beliefs (Scott / Stock) should be deleted just as they would be if they were singled out because of any other protected characteristic. b) Dstl needed to respond to the “Are gender critical views allowed in the workplace” to correct errors and to set out the current legal position. c) The Line managers’ guide should be amended to reflect that the gender identity belief was a belief not shared by the “majority of the population we serve” as only 38% in a recent poll held that belief. d) Dstl should correct previous of its’ statements to state:  Gender critical views were worthy of respect  Accordingly, there is no blanket ban on the expression of those beliefs  Straightforward statements of gender-critical belief are not always unreasonable / inappropriate just as straightforward expressions of gender-identity belief (or any other belief) are not always unreasonable / inappropriate  That colleagues are just as entitled to express gender critical beliefs as gender identity beliefs so long as they do not cross the line of being objectively offensive or unreasonable  That those employed by Dstl should expect to be exposed to beliefs they may find offensive, but which must still be tolerated in a pluralistic society. e) Dstl should apologise to those who have been affected by the environment created.

[123]The Claimant reiterated that he had no wish to necessarily express his gender critical beliefs at work to others, but he did not understand why the Respondent had allowed, promoted, and endorsed an intolerance to those who shared his belief and that if he were complaining in respect of any other protected characteristic swift action would have been taken. He suggested that he was not necessarily confident that internal debate of the issues might help, and suggested ACAS may become involved.

[124]On 30 November Ms Wedderburn acknowledged the Claimant’s correspondence and stated that she had “asked the team to review your complaint” and would be in touch shortly. She responded on 9 December to say that she understood that the Claimant was having a meeting with Mr Kealey on 12 December and that that would be an opportunity to share thoughts with a member of the Executive Team “who will be fully empowered to listen and take them forward in the most appropriate way”.

[125]Dstl’s position was recorded as being as follows: “Dstl is committed to ensuring that all of our people are treated with dignity and respect. We are committed to an inclusive working environment that provides any everyone with a sense of belonging, allows everyone to be their authentic selves, and ensures they have a voice in their teams and the organisation. Dstl will not discriminate against people on the grounds of their gender identity or gender expression. They should expect to be treated fairly have a quality of opportunity and be protected from any form of bullying harassment discrimination and victimisation within our workplace…. Dstl is committed to creating and maintaining a culture of diversity and inclusivity regardless of how a person identifies.” Paragraphs 2 and 3 of the above quotes expresses the protections that gender identity and gender expression would have within the workplace but is entirely silent about the protection afforded to those with a gender critical belief. The Claimant would say that the Respondent had, for a substantial period, failed to uphold paragraph 1 for those with gender critical views.

[126]The Claimant made it clear that he did not consider the proposed meeting with Mr Kealey to be part of the conflict resolution process. He set out that Mr Kealey’s attitude on the issues was part of what constituted the hostile environment and that was why (with Mrs Taylor’s suggestion) he had referred it to somebody else to deal with Stage 2 of the conflict resolution process. He reiterated that the issue was whether those with gender critical views should also be afforded “dignity and respect”, should also have “a sense of belonging”, should also feel comfortable to be “their authentic selves” and whether they should also be protected from harassment. The Claimant concluded by referring to the Conflict Resolution policy and sought clarity of what the next stage would be within that.

[127]In response Ms Wedderburn simply said that the Claimant should have the meeting with Mr Kealey and if that did not resolve the concerns then “we will look at next steps”.

[128]The meeting with Mr Kealey took place on 12 December and Mrs Taylor also attended (360-384). It was the first time that the Claimant and Mr Kealey had met face to face. The salient points in what appears to have been a cordial meeting were: a) Both Kealey and Taylor expressed sadness at the Claimant’s decision to resign. No attempt was made to try and persuade the Claimant to stay. b) The Claimant began the meeting by summarising his concerns again. When Kealey indicated that he would take a look at a blog with a view to removing it the Claimant made the point, not unfairly, that this had been intimated on a number of occasions without any action being undertaken. c) Kealey indicated that it was his view that those with Gender Critical views should be protected from bullying and harassment. d) Taylor indicated that “our focus absolutely” had been on those considering transitioning, were transitioning, or had transitioned of which there were a number in Dstl. e) When Taylor sought to justify the fifteen months which it had taken in discussing the Claimant’s issues, the Claimant pointed out that he doubted if somebody had suggested that a certain religion was full of bad people and should not work at Dstl, it would not have taken 15 months to deal with the issue. f) The Claimant explained that all he sought was a level playing field in terms of his belief and that if it was deemed reasonable to talk about gender identity beliefs in the workplace and across Distillery then surely those who hold contrary views should be treated in the same way. Kealey suggested that there was “an imbalance in law and intellectually” and Taylor suggested “there was very little case law for beliefs”. The point which they were making is somewhat opaque, but it appears that both were seeking to justify a different approach to gender identity belief and gender criticality belief. g) The Claimant expressed the view that “if you create an environment where it's acceptable to denigrate these beliefs, and to run them down and then go around and say does anyone want to talk about those beliefs, I don't think it is surprising if people say, no thanks, no way…” h) They go through the five matters that the Claimant had indicated he wanted for a satisfactory resolution to his complaints, which included Kealey writing a blog to try and balance matters.

[129]The Claimant followed up by email the following day with some additional points and Mr Kealey responded to each of the five areas of resolution proposed by the Claimant in his letter to Ms Wedderburn (para 97 above). There was not complete agreement with the requests that the Claimant had made (388-390).

[130]On 16 December, the Claimant responded indicating that he considered the previous letter to be a proposed resolution under Stage 1b of the conflict resolution process. That was not an unreasonable view as Taylor had indicated that the discussions with Kealey were at level 1(b) in her email of 3 October (288). Taylor had also considered that the Claimant may escalate it to Wedderburn at Stage 2 on 25 November (347), and the Claimant did indeed seek to do that in his 28 November email (348) only for Wedderburn to suggest that as there was a further discussion with Kealey planned she would not take it on at that time. Taylor certainly held this view of events as she emailed on 28 November to say that Kealey had been dealing with it at 1 a/b and that it had been escalated to Wedderburn as a stage 2 (355).

[131]Teresa Stanley emailed Paula Thick (who they were is not clear to us) to say that she assumed that “Sue explained that we are not in “Stage 1(b) etc.” It is not clear to the Tribunal the roles that these individuals played (if any).

[132]On 13 January Kealey replied to the Claimant’s December email. This email has a markedly different tone to correspondence that had gone on before. We note the anxiety to assert that the Claimant had been head hunted and that he had simply chosen to leave. Kealey makes what we consider to be some very surprising assertions such as: A) “… you have not highlighted any bullying or harassment at work” B) “… you have not raised any “attacks” (for holding gender critical views) for resolution”

[133]The letter finishes with “At the start of your e-mail you ask about conflict resolution. My interactions with you have been to understand this area of concern and your experience at Dstl. Dstl has now appropriately answered your questions and in multiple meetings discussed these to ensure clarity. Therefore, the concerns you have raised are now closed as they have been thoroughly reviewed. This e-mail concludes this discussion and conflict resolution process that you started with Sue Taylor, PECD and me”. In short, the Claimant was not permitted to take his concern to the next level as had been suggested by Taylor.

[134]On 16 January the Claimant replied to Kealey to ask whether: a) Dstl did not believe that anything he had raised constituted bullying harassment or an attack on a protected group b) Dstl did not believe that the issues he had raised had limited the Claimant’s ability to do his job. c) Dstl maintained that it was unacceptable to openly express gender critical beliefs on Distillery. d) Dstl did not believe that there was any connection between this issue and the Claimant’s decision to look for and accept employment elsewhere. e) Mr Kealey’s letter was the final outcome of stage 3 of Dstl’s conflict resolution process and Dstl were not willing to discuss this issue further.

[135]On 20 January 2023 Kealey agreed that the Claimant had correctly understood his previous letter and reiterated that all matters were now closed.

[136]On 13 February Kealey sent the Claimant a draft of the blog that he wished to send out as a result of the discussions held. It was entitled “Staff Beliefs and LGBT+ Rights”. It had previously been approved by other individuals in HR. The Claimant put a substantial number of points forward as he was asked to comment on the same – some were implemented, and some were not. Objectively the bigger points were not taken up. The blog when it was issued provoked six pages of comments from staff.

[137]On 15 August 2023 Professor Scott complained about the blog about her (see above). Within 8 days the blog was deemed not to be in compliance with the Dstl Acceptable Use Policy and was removed. General Findings

[138]The Claimant’s philosophical belief is protected at law as was confirmed in Forstater. It is a qualifying belief for the purposes of section 10 EqA and by that has been deemed to be worthy of respect in a democratic society. Parliament has stated that it falls within a list of protected characteristics set out at section 4 EqA and so has determined that it is contrary to the law to (so far as this Claim is concerned) to treat those who hold that belief less favourably than others would be treated or alternatively that it is contrary to the law to harass one who holds that belief, subject to the case law that has built up in respect of philosophical beliefs.

[139]There are many things that are not covered by the Equality Act 2010 as of right and there is no sanction thereunder for unpleasant or less favourable treatment because of those things. It is also clear that there is no hierarchy of protected characteristics. They are listed in alphabetical order in the EqA. The rights of an employee who holds a philosophical belief is entitled to be upheld as much as the rights of any particular sexual orientation, age, race etc. Whilst there may be conflict at times potentially between different protected characteristics (e.g. religion and sexual orientation), what is required is to balance those competing legal rights again as set out above.

[140]There are numerous aspects of the Respondent’s conduct that causes the Tribunal some concern and we will detail these shortly. Throughout the whole process the Claimant made his points reasonably and clearly. It is abundantly clear to the Tribunal and should have been clear to the Respondent that there was an issue to be carefully considered and acted upon in a timely manner. The Claimant was patient in his approach and dealt with his concerns proportionately. There were times when he thought he was making progress, but those hopes were normally dashed within a short time.

[141]The Tribunal are satisfied that as suggested within the Claimant’s submissions this is a case where at the very basis of it was a clear hostile animus against the Claimant’s belief itself. That hostility is clear from the posts themselves and the overt hostility towards anyone with gender critical beliefs including the Claimant by those who felt the need to comment on the blogs. Indeed, it is arguable that their conduct was more reprehensible than the initial authors. We are satisfied that those who held the beliefs contrary to the Claimant assumed that anybody holding those beliefs must be a transphobe and this constituted an unlawful stereotype applied to those holding the beliefs. We are also satisfied that management by failing to act adequately or at all by taking down the posts or indicating that such behaviour was not acceptable and specifically stating in Kealey’s case that only one side of the debate was entitled to be aired effectively adopted the actions of the posts. We consider that this is a situation as set out clearly in paragraph 55 of the Higgs Court of Appeal Judgment.

[142]It is clear to the Tribunal that there was a marked difference of approach towards PRISM posts or matters relating to gender identity than there was towards anything linked to a gender critical view. It is apparent that management viewed PRISM as a powerful force within the organisation and were loath to do anything to go against / upset that body. Even doing that there were still occasions where members of PRISM did not feel management had gone far enough. We have no doubt that there are substantial benefits to having a powerful lobbying group which has the ear of management. It is highly likely that there was a need for better working between PRISM members and management but as Mrs Taylor admitted in a meeting with the Claimant the Claimant’s situation (i.e. the alienation he described) may have been an unintended consequence of the Respondent “piling all your resources into fixing that issue, which is what I think we have done on the LGBT+”. The Tribunal considers that is an accurate account of what went on with the Claimant i.e., the Respondent was so keen to keep in with PRISM they lost sight of the rights of other workers such as the Claimant.

[143]At the bottom of all this was a fundamental misunderstanding by Taylor and Mr Kealey that holding gender critical views is a philosophical belief that complies with the Grainger criteria and is protected at law as much as any other belief. Even as late as 12 October Mrs Taylor said, “So you’re coming from the place where you believe that your beliefs are protected” and when the Claimant confirms that she responds “Okay, because that is something that perhaps we might challenge”. Forstater would suggest otherwise but it is at least an explanation as to why the Claimant’s complaints about his beliefs were not taken seriously. To the very end the Tribunal are far from sure that Dr Kealey really accepted that gender critical views were a protected belief. The Line Manager’s Guide which was technically reviewed and allowed to be used by managers as a guide to dealing with matters had equated a denial to accept gender identity as being part of transphobia. That was permitted to remain and “inform” any who decided to look at the Guide

[144]The Tribunal do not consider that the Claimant’s complaints about the effect his gender critical belief and how others made him feel because of it was adequate at all. In particular we are quite satisfied that due to the culture within the organisation it was not taken as seriously as a complaint of other forms of discrimination would have been. Examples are as a) The Moderators – They are employed to consider the acceptability of posts on the Distillery network. We do not accept that the Respondent can shirk responsibility for the content on Distillery. They have set the system up and fully understand the use that some put it too. If there is abusive or inappropriate content, then the Respondent will ultimately be responsible for it. No doubt there are some useful outcomes from Distillery conversations, but little benefit seems to have come from any of the posts we have been asked to consider. Certainly there is nothing that would be of any material benefit to the output and quality of work. The moderators are the monitors yet on the two occasions the Claimant asserted he felt harassed they did not consider that aspect as part of the moderation they dealt with. On balance we consider this to be a training issue, but the Tribunal are surprised that there was no formalised escalation process when allegations of harassment were made. b) Richard Murray Jones – the Claimant on 29 November 2021 made the point that the post was creating a hostile environment to colleagues who hold gender critical views. It was an allegation of harassment for holding a philosophical belief and there was no response. Whilst no explanation has been forthcoming the Tribunal are satisfied that if the complaint had have been linked to race / gender / sexual orientation then a response would have been forthcoming. It is, in our view inconceivable that that would not have been the case c) Whereas the Claimant’s concerns were not acted upon timeously or indeed at times at all when there were concerns raised by Cox etc about the unfairness to the gender identity side of the debate there was a flurry of activity. Whilst ultimately the grievance petered out the correspondence etc shows that at the very least it was discussed and dealt with unlike the Claimant’s plea to Mr Murray Jones which went unheeded.

[145]In January the Claimant was spoken to about the complaint he had raised. It was clearly a matter of concern to him yet the wheels to get him to speak to HR went incredibly slowly. It was a further 4 months before the Claimant was even introduced to Mrs Taylor and then almost a further month before there was a meeting which it appears that Mrs Taylor took little interest in (from the lack of notes and her inability to recall anything about it). Again, we are quite sure that whilst we acknowledge Ms Taylor was busy had the complaint related to an issue related to gender identity and, indeed, any other protected characteristic there would not have been such a delay

[146]The context of that meeting was all set out in the email of 6 June from the Claimant where he sets out his concerns re the general trend and that he was seeking reassurance because he formed the view that his beliefs were “not really welcome” at the Respondent and that it was having a deleterious effect upon the Claimant both in terms of his work and at home. It should have been abundantly clear to Mrs Taylor that a situation was being raised that the Claimant was asserting was harassing in nature because of his gender critical beliefs and that because of it he was considering resigning. Within that letter he set out links to posts which demonstrated his point and also referred to the Line manager’s Guide.

[147]We are satisfied that the Claimant raised these matters in a proportionate and comprehensive way. There was a problem to be looked into and resolved and the letter showed a number of deeply red flags which should have alerted Mrs Taylor to a potential significant problem.

[148]After the meeting the Claimant confirmed and clarified a number of points in a further email of 17 June identifying further specific areas of concern from the Line Manager’s Guide.

[149]Nothing then seems to happen until the Claimant raises issues about Dr Kealey’s blog (246). The Respondent have not shown they did anything at all in the interim. Again his complaint is moderate and respectful in tone and suggests that the blog is yet another example of his point vis a vis Dstl taking a side on the gender critical / gender identity debate. At the end of this email the Claimant states that for him it is becoming more and more clear that the Respondent has decided those with the “wrong” philosophical belief deserves to be discriminated against because of those beliefs. The Tribunal can understand why the Claimant was holding that view.

[150]In short order Mrs Taylor has passed the gender critical “parcel” over to Dr Kealey. There is then a delay of over two months before a meeting between Dr Kealey and the Claimant takes place. The Tribunal finds that there was a high level of complacency in relation to the Respondent’s dealings with the Claimant which is characterised by the lack of urgency to deal with these issues. We are satisfied that this was a meeting which achieved very little. Dr Kealey spoke a lot but much of it was simply rambling, and the Tribunal are satisfied that Dr Kealey had not looked in any detail or indeed at all about the specific issues the Claimant had raised in previous correspondence.

[151]The Claimant then set out all the matters again in a further email to Dr Kealey. It is a clear outline of the Claimant’s worries and concerns. The Claimant states that if these issues were related to a different protected characteristic there would be greater urgency in addressing them. The Tribunal accepts that is correct. On 3 October Dr Kealey emails the Claimant and states that it is not acceptable to express gender critical views in the workplace. Later that day Mrs Taylor states that she considers that the Claimant is at Stage 1b of the Conflict Resolution process and that if he wants to, he needs to escalate it to Stage 2 (288). Mrs Taylor’s view of the situation was an appropriate one. The Claimant had been raising grievances from the start but had chosen to go along the route of dialogue and discussion with little success

[152]This then led to the conversation with Mrs Taylor on 12 October wherein the Claimant repeated (again) his issues and concerns and what he wanted to happen. A summary of this meeting appears earlier in this Decision. The Tribunal finds it incredible that it appeared to be a surprise to Mrs Taylor that the Claimant was suggesting that his beliefs were protected and equally surprised that the Respondent, at that point, or indeed at all, might challenge that suggestion. She also suggested in this meeting that the Claimant may have been a victim of the desire to “fix” issues within the LGBT+ community. She remained completely blasé about the possibility that the issues which had now been going on for some time could lead to a Tribunal claim. From statements made by the Claimant this possibility should have been flashing in large neon letters for some time. The Tribunal consider that this is just another example of the Respondent not taking the Claimant’s issues seriously. We are quite sure that it would not have been missed or ignored if another belief or another protected characteristic had been the topic of conversation. On 31 October Mrs Taylor enquired what the Claimant’s belief was despite her knowing that the belief held was in relation to being gender critical.

[153]On 4 November the Claimant made a further complaint about a post of Dr Kealey in which he reinforced that gender criticality views were not permitted in the workplace and the Claimant made the point that it was a further example of harassing behaviour.

[154]On 18 November the Claimant handed in his notice and resigned. The Tribunal accepts the Claimant’s reasons as given within his letter of resignation cited above. He resigned because of a combination of the adverse environment that he was experiencing about which nothing was being done and about which there was no real prospect on the basis of the Claimant’s experience of any material change taking place. We accept that the issues had caused the Claimant stress and anxiety over an elongated period. We are aware from Mrs Taylor’s email of 25 November that he was not the only victim of what was described as “Distillery spats”.

[155]Matters did not improve thereafter. Despite the views of Mrs Taylor, the Claimant was not permitted to escalate his complaint via the remaining stages of the Conflict Dispute Process. Dr Kealey made the decision on that in his January letter/ email. The resolutions he sought were not agreed to by Dr Kealey following the meeting on 12 December which also yielded little progress. We find that the Claimant’s issues were not acted upon promptly or with any diligence and were barely taken seriously any words to the contrary were on our finding hollow indeed. In short, the Claimant’s belief was at all material times not properly respected and again any words to the contrary simply do not ring true. We are quite sure and find that had the Claimant been asserting that his treatment was in relation to another protected characteristic or indeed even another belief he would not have been treated so shabbily. Harassment 136. Section 26 of the Equality Act 2010 reads, so far as is relevant to this case as (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…. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are….disability.141. In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, the EAT stated that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue and that, in each context, 'harassment' is defined in a way that focuses on three elements: (a) unwanted conduct; (b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for him/her; (c) on the prohibited grounds (that is, of sex, race, disability and so on). That refers back to wording of the statute before the Equality Act 2010 and now the consideration needs to be whether it is related to the relevant protected characteristic which in this case is a philosophical belief.

142. The EAT remarked that it would normally be a 'healthy discipline' for tribunals to address each factor separately and ensure that factual findings are made on each of them.

143. In Dhaliwal, the EAT went on to make the following general points: (a) Older case law decided before the modern statutory coverage is 'unlikely to be helpful'. Similarly, assistance is not to be sought from the 'entirely separate provisions' of the Protection from Harassment Act 1997. (b) The alternative bases in element (b) above of purpose or effect must be respected so that, for example, a respondent can be liable for effects, even if they were not his purpose (and vice versa). (c) In each case, there is a proviso that means that, even if the conduct has had the proscribed effect, it must also be reasonable that it did so. There is of course a subjective element ('… having regard to … the perception of that other person …') but ultimately the proviso can deal with cases of unreasonable proneness to take offence. Although 'purpose' is not determinative, it can be a factor: 'the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt' (at para 15 of the Judgment). Ultimately, this is all 'quintessentially a matter for the factual assessment of the tribunal'.

144. In Pemberton v Inwood

[2018] EWCA Civ 564

, the Court of Appeal took the opportunity to re-visit the guidance given in Dhaliwal, to address what was identified to be a subtle change in wording in the Equality Act 2010 s 26, as compared to the earlier formulation under the RRA 1976 s 3A. Although not considering that this gave rise to any difference of substance, Underhill LJ re-formulated the guidance to better reflect the language of the Equality Act, as follows: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under subparagraph (1)(b), a tribunal must consider both (by reason of subsection 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).''

145. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for them, then it should not be found to have done so.

146. Dhaliwal concluded as follows: ''We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

147. The question of whether or not the conduct is unwanted requires an assessment of the Claimant’s reaction to what has taken place. The Claimant has set out in the List of Issues the specific conduct that he asserts was unwanted and an assessment needs to be made if that is truly the case.

148. 'Conduct' can be physical or oral and can cover messages and images contained in documents or sent by email or distributed or displayed by other means. The conduct complained of as an act of harassment may be a dismissal. This was confirmed in relation to positive dismissals in Urso v Department for Work and Pensions

[2017] IRLR 304

, EAT.

149. Although a complaint of harassment carries the implication of conduct persisting over a period of time, there is no requirement that this be so. A single act, if of sufficient seriousness, can be enough. It is important to remember not to take each allegation as an isolated incident, but each successive episode has its predecessors, and the impact of successive incidents may accumulate, and the work environment created may exceed the sum of the individual episodes (Reed v Stedman

(1999) IRLR 299

150. Harassment will be unlawful if the conduct had either the purpose or the effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them) hereafter the prescribed effect).

151. A claim based on 'purpose' would plainly require an analysis of the alleged harasser's motive or intention. This may, in turn, require the Employment Tribunal to draw inferences as to what that true motive or intent actually was as the person against whom the accusation is made is unlikely to simply admit to an unlawful purpose. In such cases, the burden of proof may shift from accuser to accused, as it does in other areas of discrimination law.

152. Where the claim simply relies on the 'effect' of the conduct in question, the perpetrator's motive, or intention, which could be entirely innocent. is irrelevant. The test in this regard has, however, both subjective and objective elements to it and the EqA says that the following must be taken into account: the perception of the complainant, the other circumstances of the case and whether it is reasonable for the conduct to have had the effect. The assessment requires the Tribunal to consider the effect of the conduct from the complainant's point of view; the subjective element. It must also ask, however, whether it was reasonable for the complainant to consider that conduct had that requisite effect; the objective element.

153. As a consequence of the objective element to the test of whether conduct amounts to 'effect' harassment, the fact that the claimant is peculiarly sensitive to the treatment accorded him or her does not necessarily mean that harassment will be shown to exist. In this regard, see the guidance given by the EAT in Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, which concerned the approach to be taken by employment tribunals, in determining whether alleged harassment constituted discrimination on grounds of sex. In Driskel the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered. That said, harassment giving rise to the defined effect may arise as a result of nicknames, teasing, name calling or other behaviour even when this is carried on without malicious intent.

154. Although the focus will be on the behaviour which is complained of as harassment, the conduct of the complainant themselves may not be entirely irrelevant. Tribunals will wish to be careful not to engage in 'victim-blaming', but the complainant's own behaviour and perspective will be part of the context in which the alleged 'harassment' will have to be seen. 155. There is no requirement for the complainant to put forward a comparator (hypothetical or real). The conduct must, however, be 'related to' a relevant protected characteristic. Ultimately, the protection is against harassment that is, itself, a form of discrimination. Bullying is, of itself, not discrimination, except in the unhelpful sense that it involves treating some individuals differently to others.

[156]All that said, 'related to' imports a potentially very broad test, leaving the scope of the term largely to employment tribunals to apply on a caseby-case basis. Having established on the evidence what was the conduct of the particular individual or individuals in question, the employment tribunal has then to apply an objective test in determining whether it was 'related to' the protected characteristic in issue; the intention of the actors concerned might form part of the relevant circumstances but will not be determinative of the question the tribunal has to answer.

[157]Whilst the view of the complainant that the conduct in question is related to the protected characteristic in question is a relevant matter, it is not determinative. The Tribunal should articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged. It may be “because of” the protected characteristic but case law dictates that related to is wider than just “because of”.

[158]Section 136 of the Equality Act 2010 deals with the burden of proof to be applied for both harassment and direct discrimination claims. That section reads as follows so far as is relevant: 136(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[159]As discrimination is frequently covert and therefore can present special problems of proof, section 136 EqA provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof ‘shifts’ to the respondent to prove a non-discriminatory explanation.

[160]If a Claimant is unable to establish a clear case of discrimination, he or she can attempt to shift the burden of proof onto the respondent by establishing what is commonly known as a ‘prima facie case of discrimination’. It is clear from S.136(2) that a prima facie case of discrimination is established if there are facts from which the court could decide, in the absence of any other explanation, that the Respondent has contravened the provision concerned (i.e. unlawfully discriminated against the Claimant).

[161]The issue of what amounts to a prima facie case of discrimination lies at the heart of the shifting burden of proof. It will depend on what inferences can be drawn from the surrounding facts.

[162]In Madarassy v Nomura International plc

2007 ICR 867

, it was stated that: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[163]A failure of the Respondent to provide an explanation, without more, is not capable of shifting the burden of proof. Having said that Tribunals have been encouraged to retain a flexible approach when applying the burden of proof. In Laing v Manchester City Council and anor

2006 ICR 1519

the EAT, emphasised that “the process of drawing an inference of discrimination is a matter for factual assessment and is situation-specific”. Conclusions on Harassment Allegations 164.2.2.1 On 31 August 2021, was discriminatory content placed on the Distillery blog by Lynn O’Donnell? (GoC, appendix, paras. 1-4);

2.2.2 On or around 2 September 2021, did R permit the above content to remain on the Distillery blog following concerns raised by C? (GoC, appendix, para. 4). As with many of the allegations of harassment, the actual specific phrasing of the allegation is a little awkward. These first two allegations are differently phrased to those that follow in that the first complains only about Lynn O’Donnell’s contribution and not the comments that follow and secondly so far as the management response is concerned it is only that on or around a certain date that is complained about whereas all the others are framed as being from a certain date and ongoing. The Tribunal must respect the differences that the legally represented parties have decided upon and agreed as being the specific issues that the Tribunal needs to deal with.

[165]We accept that the content of the post (78) was unwanted in the sense of being unwelcome or uninvited and that it was related to the Claimant’s philosophical belief The post was made on Distillery which was a forum for all staff and any contribution thereto needed to be written with that large audience in mind. The Respondent is legally responsible for the views and words of employees who posted thereon. We do not accept that the fact that it was an individual viewpoint and not one necessarily endorsed by the Respondent itself would make any difference. If one was to place an overtly racist blog up on the system, the fact that it would be the personal view of the individual posting would make no difference to the Respondent’s liability for it. The Claimant initially reported it because it was unfair to Professor Scott. We also do not accept that the answer was for the Claimant simply not to read certain blogs. The blogs are put out there to influence and educate others and it is not unreasonable or wrong for the Claimant to wish to keep abreast about the information that is being put out and potentially influencing his colleagues. If discriminatory material is being posted the answer is not “don’t read it if you don’t like it” but should be “don’t post it”. The title to this post would not necessarily advertise that those with gender critical views were going to be criticised.

[166]We do not accept that the purpose of the blog was to create an intimidating, hostile, degrading, humiliating or offensive environment or to violate the Claimant’s dignity (hereafter “the prescribed effect”). The purpose was to put out a personal view about the allocation of a prize, but we do accept that the Claimant’s perception that it did have the effect of creating a hostile environment for him from 2 September. That takes the Tribunal to then consider the “other” circumstances of the case and whether it was reasonable for the conduct to have that effect.

[167]The relevant other circumstances of the situation were in our view that the blog was about a third party and not the Claimant, that this was the first time on the evidence we have that the Claimant had been concerned by a comment in relation to his philosophical belief, the fact that the Claimant initially focussed on the slander to Scott and not the hostile environment it created and that notwithstanding reference to TERF which is a derogatory term, the Tribunal do not consider that this allegation of itself and placed where it was at the very start being an individual incident was sufficient to meet the objective test. Allegation 2.2.1 is not well-founded as an act of harassment and is rejected.

[168]So far as 2.2.2 is concerned the allegation is that the content was permitted to remain but is time limited to around 2 September and so that can only pertain to the decision of the moderators at the time. From the evidence we have seen the moderators seem to take the majority of their direction from the initial identifier logged which was in this case slander. That was the totality of their focus, and the blog was moderated to a limited extend solely on this basis. Factually the blog and its general message that it was disappointing that those with gender critical beliefs should be awarded a prestigious prize remained. Although we have not heard evidence from the moderators, we are satisfied that the reason they did not escalate the Claimant’s wider complaint was because they saw their role as being narrowly defined to removing the slander as is evident in other matters, they became involved in. We do not accept that they did what they did or failed to do what the Claimant wanted them to do with the purpose of creating the prescribed circumstances. The Claimant made no immediate complaint about the post not being taken down in its entirety and so we conclude that it remaining was not an act that, of itself, created a hostile environment. If we are wrong on that and it was the Claimant’s perception, then we consider again that as this was the first time the Respondent had failed to take down an entire post and because of the nature of the post itself it would not have been sufficient to meet the objective test. Allegation 2.2.2 is not well-founded as an act of harassment and is rejected. 169. 2.2.3 On or about 15 October 2021, was discriminatory content posted by Jon Cox and other employees on the Distillery blog? (GoC, appendix, paras. 5 and 7); 2.2.4 From around 15 October 2021, did R permit the above content to remain on the Distillery blog following concerns raised by C? (GoC, appendix, paras. 9-11(a) and (b)); This post is an attempt to describe the level of hate allegedly directed at trans and non-binary individuals. Professor Stock is described as an individual who holds such a view but is careful about how she relays those views. The issue of trans people in women’s spaces is equated to segregation in the South of America. In the comments Stock was described as transphobic and the spreader of hate. We consider that a fair reading of this post is an attack against those with gender critical views, but primarily Professor Stock. Our view is similar to that set out at 2.2.1. We accept that such a view was unwanted by the Claimant both in terms of the criticism that he considered to be unfair against Stock but also in relation to the wider narrative against those who held a gender critical belief. We do not accept that the purpose was to create a hostile environment, but we also accept that the effect was to subjectively create a hostile environment for the Claimant, and he perceived it as such. Again, however the post is primarily a critique of a third party, it was only the second such article and in the whole context we do not accept that the objective test is met, and Allegation 2.2.3 is not well-founded as an act of harassment and is rejected.

[170]We consider that as of November when the moderators made their amendment and did not take down the whole post, that the Claimant did consider that action to be unwanted (see email 29 November to Mr Murray Jones). The acts of the moderators were not with the purpose of creating the prescribed effect but on this occasion, we accept that the Claimant did perceive that it remaining was creating a hostile environment for him. Once again, however as at that date we do not accept that the objective test was met taking into account the early stages of the whole saga and it was not reasonable for him to hold that view. Allegation 2.2.4 is not well-founded as an act of harassment and is rejected 171. 2.2.5 On or around 13 January 2022, did R warn C, or speak to him in a way that made him feel that he was being warned, about his reporting of Distillery posts? (GoC, appendix, para. 11(b) and (d)) The context of this allegation is all important and requires a consideration of what was contained in the case of Reed above. The context is that since September the Claimant has made two complaints that two blogs on Distillery had made him feel that those with gender critical beliefs were not welcome in the workplace. The moderators failed to engage with those complaints / comments and so the Claimant considered it reasonable (as do we) to write to Murray-Jones suggesting in effect that the posts and comments to the dog whistle blog were harassing in nature to those with gender critical views and seeking reassurance that those with gender critical views were “welcome” to work at Dstl. As Diversity and Inclusion Lead, he was an appropriate person to which to escalate the concerns and from whom to seek reassurance. He did not respond, and the Respondent have not put forward any reason for that failure. Taylor accepts that Murray Jones should have “reached out to Dr Wilkins to understand his concerns and discuss how they might be resolved” (Statement para 7). We agree that is what should have taken place and when it was not we can understand that the lack of action across the three times the Claimant had raised his concerns culminating with a seeming lack of interest from the Diversity Lead drove the Claimant to believing that nobody wanted to deal with or indeed cared about the issues he was raising. We can understand why and accept that the Claimant started to consider other options because of the lack of action by the Respondent.

[172]In contrast on 23 November 2021 the authors of the Dog Whistle post raised a complaint alleging that the Claimant was committing harassment and discrimination against individuals on account of their gender reassignment status. There then follows discussion between Ms Wardman and Ms Taylor about the complaint and a decision was taken that the Claimant should be told about the complaint, and she specifically states that she was seeking to give him awareness as he may wish not to get involved in such discussions in the future. We find that Mr Whitaker was of the view that there was no need for the Claimant to be spoken to at all, but Ms Taylor disagreed.

[173]Factually Mr Whittaker did speak to the Claimant on 13 January about the fact that there had been a complaint about his reporting of the Distillery post, and he did so at the behest of Ms Taylor having made his representations. Mr Whitaker does not mention any discussion on 13 January at all in his witness statement. The Claimant’s account is that: “I was told that my reporting on Distillery had upset the poster. Ben reassured me that I hadn't done anything wrong and that I was only being told for awareness. However, I found the conversation unsettling I asked Ben to go back to HR to clarify the situation and to confirm whether people with gender critical beliefs were free to work at DSTL and express their beliefs. I was left anxious after this meeting. I felt I was being leant on to stop reporting discriminatory comments and warned that my actions had been noted by HR”

[174]The Claimant and Mr Whitaker had a further meeting the following day and a partial transcript is available and the Claimant asserted in his statement that he came out of the meeting feeling more positive (para 46 of statement). The main points of that meeting have been summarised above and will not be reiterated but at all times Mr Whitaker offers the Claimant nothing but reassurances.

[175]We do not consider that we can simply deal with the conversation on 13 January alone. The conversation on the following day was clearly a follow on to the first conversation where the Claimant sought certain reassurances which were then obtained and made him feel more positive. We accept that the Claimant did not want to be told that a complaint had been made and so in that sense being spoken to was unwanted. We consider that at the start of the 13 January meeting the Claimant did feel as if he was being warned although we accept that was not the purpose of the meeting. Rightly or wrongly a view was taken that the Claimant should be informed. Looking at the meetings as a whole and the positivity displayed towards the Claimant by Mr Whitaker, who appears fully supportive throughout the meeting of 14 January we do not consider that notwithstanding any perception the Claimant had that the actions of Mr Whitaker can be described as harassing in the context of what had gone on before and the nature of the discussions which ultimately in the Claimant’s own words made him feel more positive. At a later point 27 September, the Claimant describes both Mr Whitaker and Mrs Taylor as “very supportive” and confirms he is “grateful for that.” The Tribunal considers that contradicts the suggestion that this was an act of harassment. Allegation 2.2.5 is not well-founded as an act of harassment and is rejected. 176. 2.2.6 On 20 January 2022, on the Distillery blog, did Sally Davis and Roger/Becky Bennett denigrate employees with gender critical views by calling for them not to be tolerated if not prepared to change their ways and by describing them as rubbish employees? (GoC, appendix, para. 13) The Claimant had posted on an Employee Review on 30 November 2020 that a con of working for the Respondent was that those with gender critical views did not feel welcome at the Respondent. Further on 4 November he had asked for a copy of the post-Forstater Dstl strategy on gender identity and gender expression. These were cited as reasons why Kit Barry no longer felt safe at work “to the point of panic attacks” because such requests gave a belief that they would be targeted by the right-wing press and /or “actual Nazis”. The request was perceived as being “targeted antagonism against the LGBT community”. The comments on the post were awash with negativity towards the Claimant’s belief all be it that his identity was not known.

[177]The negativity towards the Claimant because he has indicated that he does not feel welcome at the Respondent because of his views and because he asked whether there had been any update to policy following Forstater, is at a different level to that which had gone before. The Claimant’s life is described as “empty”, “sad and pathetic”, “transphobic”, “rubbish employee” and a persecutor of communities.

[178]We accept that the comments were unwanted. We find that the purpose of the comments was to attack the Claimant who had written the comment and made the request, and we find that it did create a hostile and intimidating environment for the Claimant and in fact that it would do so for anybody who held a gender critical view. If we are wrong that it was the purpose then it certainly had that effect on the Claimant and we consider, on this occasion, taking into account the vehemence of the antipathy that it was reasonable, objectively, for the conduct to have that effect. It was directly related to the Claimant’s philosophical belief and in our view was abusive and unnecessary and clearly “crossed the line”. Allegation 2.2.6 is well-founded as an act of harassment and succeeds.

[179]Further we accept that following the brief hope that had been instilled by Mr Whitaker that steps were being actively taken on the other side of the debate we accept that this event had a further negative effect on the Claimant’s perception of the Respondent and the protection that he and those with his views might receive in the workplace. 180. 2.2.7 From 20 January 2022, did R permit the above content to remain on the Distillery blog, following concerns raised by C? (GoC, appendix, paras. 15 and 16);

[181]The Claimant explains that he no longer saw the point of reporting matters. We understand why he might have come to that view but it was unlikely that the post would have been taken down without any sort of complaint being made and so we do not accept that there was any conscious thought or decision to keep this post and comments up on 20 January. There did come a point later when the Claimant suggested that the remedy, he sought was that the posts be taken down (12 October at 298). The Tribunal will deal with this further when dealing with direct discrimination.182. 2.2.8 On 26 April 2022, did a post published by Lynn O’Donnell on the Distillery blog state that persons who share C’s philosophical belief was unfortunate? (GoC, appendix, para. 14) This involves a post by Lynn O’Donnell that ran to some six pages, in support of Lesbian Visibility Day 2022 which took place at that time. It provided a guide to certain terminology and set out why visibility in the workplace was important and a discussion of lesbian portrayal in the media. The conclusion is a rallying call to join PRISM or to become an ally and to try and show support. The post does have a single line relating to a view that “a tiny proportion of lesbians are gender critical” and that fact is deemed “unfortunate”. The Tribunal considers that this comment is insufficient to amount to an act of harassment both singly and in the context of others. Whilst the Claimant may not have others with the same philosophical belief as him being described as unfortunate, we are not satisfied that such a comment was intended to create the prescribed environment. Even if it did have that effect (which we doubt) objectively that would not be sufficient to make it an act of harassment. Allegation 2.2.8 is not well-founded as an act of harassment and is rejected.

183. 2.2.9 From 26 April 2022, did R permit the above content to remain on the Distillery blog following concerns raised by C? (GoC, appendix, paras. 15 and 16); The Claimant had explained from January there was a period when he no longer saw the point of reporting matters. It was unlikely that the post would have been taken down without any sort of complaint being made and so we do not accept that there was any conscious thought or decision to keep this post and comments up on or around 26 April 2022. The Claimant did assert that it should be taken down at a later point. However we do not consider that the action of the Respondent in failing to take down this individual post which even taken in context is very mild can be said to be harassing in nature. Allegation 2.2.9 is not well-founded as an act of harassment and is rejected.

184. 2.2.10 Sometime before 6 June 2022, did R tell C that “liking” a gender critical post by the organisation Sex Matters on LinkedIn was a political act and offensive to a colleague? (GoC, appendix, para. 16(d)) We accept Mr Whitaker’s evidence that he did not suggest to the Claimant that it was a political act. He accepts that the matter was raised by him, and he did inform the Claimant that somebody had been offended by the Claimant’s liking of the post. Both agree that it was an uncomfortable conversation, but we accept that it was reasonable for Mr Whitaker to bring the same up. We are quite satisfied that his actions were proportionate and was meant to highlight to the Claimant the views of others. There was no intent to create a hostile environment. We consider that Mr Whitaker had expressed support for the Claimant throughout and again consider that the Claimant’s endorsement of Mr Whitaker in October runs counter to the suggestion that he felt that he was harassed by him previously. We do not accept that the discussion created the required environment and even if it did it would not have met the objective test. Allegation 2.2.10 is not wellfounded as an act of harassment and is rejected.

185. 2.2.11 Did Paul Kealey’s Distillery post of 30 June 2022 titled ‘Executive Team blogs: Wear your rainbow lanyard with PRIDE’ imply that those who share C’s philosophical beliefs were transphobic and did that email, and his follow up email of 3 October 2022, create a “hostile” etc. environment described by C at para. 19 GOC for those with gender critical beliefs? (GoC, appendix, paras. 19 – 23);

[186]There is a substantial amount packed into this allegation. The blog needs to be viewed in the context of all that had gone on before which was broadly the Claimant asserting over a period that he held a concern that those with gender critical views were not welcome and those complaints either being ignored or at best being considered at a snail’s pace. The view that the Claimant held that he was not being heard and that those with gender critical views were not welcome was not an unreasonable one to hold at this point.

[187]This post is written by a senior manager of the organisation and the blog is a cry for support for the LGBT+ colleagues which is needed “more than ever right now”. Staff are encouraged to provide “supportive engagement for that community” and the only possible conclusion is that Dr Kealey is encouraging staff to get involved on a side re the conversion therapy ban and to support reform of the Gender Recognition Act. Immediately after he opines that “Let me be clear, homophobia and transphobia have no place at Dstl. This is also in the context of an organisation states in the Line manager’s guide that states that the denial / refusal to accept gender identity is contained within the definition of transphobia. It follows logically that gender identity views have no place at Dstl. He then mentions the issue of transgender women competing in women’s sport.

[188]At best Dr Kealey was being clumsy, but in fact the Tribunal do not accept that Dr Kealey was being clumsy. He was showing support and encouraging others to choose one side of the debate deliberately and by so doing he was creating a hostile and intimidatory environment for the Claimant and those who shared a gender critical view. We find that on the basis that there are a number of occasions where Dr Kealey expresses views that are contrary to those with a gender critical belief, including in his email to the Claimant on 3 October. The Tribunal consider that Dr Kealey’s intervention in his blog on 30 June was unwanted by the Claimant. The support shown certainly had the effect of creating the required environment and by Dr Kealey trying so hard to appease one side of the debate arguably its purpose was also to try and dissuade those with gender critical views to “see the light”. We consider it entirely reasonable for the Claimant to view this as hostile and intimidatory related to his philosophical belief and so Allegation 2.2.11 is well-founded and is an act of harassment and is therefore upheld. 189. 2.2.12 From 30 June 2022, did R permit the above content to remain on the Distillery blog following concerns raised by C, and delay responding to such concerns? (GoC, appendix, paras. 19-23).

[190]The content did remain on Distillery. The Claimant had raised immediately with Mrs Taylor his concerns (246) and in particular his view that “senior leaders were doing their best” to create a harassing environment. Whilst an offer to meet with the Claimant was made on the same day and the Claimant agreed on 4 July but it took a further 2 months to set up a meeting (although part of that was the Claimant’s two weeks leave). We do not accept that the delay was something that was necessarily unwanted by the Claimant nor that it created the prescribed environment. There are numerous courteous emails trying to set up the meeting (257-259) within which the Claimant does not appear to be anxious about any delay.

[191]We do accept however that the failure to remove the post was unwanted and did have the effect of maintaining a hostile and intimidating environment for the Claimant because it demonstrated that the Claimant’s philosophical belief and the treatment he was receiving was likely to continue and that he did not have the support of Dr Kealey. It was reasonable for it to have that effect and so Allegation 2.2.12 is wellfounded in part and is an act of harassment and is therefore partially upheld. 192. 2.2.13 On 3 November 2022, did Kit Barry post on the Distillery blog that holding the gender-critical view that “sex is biological and immutable” was unacceptable and incompatible with working at R? (GoC, appendix, para. 28).

[193]We accept that Kit Barry did express the view that holding a gender critical view was unacceptable, but we do not accept that she stated that it was incompatible with working at the Respondent. We accept that Dr Kealey’s post was unwanted and due to its layering on all that had come before we do accept that it did have the effect of creating the required environment and the Claimant was reasonable to consider that it did. We again consider that the comment “crossed the line” into being unacceptable. Allegation 2.2.13 is well-founded in part and is an act of harassment and is therefore partially upheld 194. 2.2.14 Did Dr Kealey comment on the above post and state that R did not expect to hear gender-critical views in the workplace? (GoC, appendix, para. 29).

[195]Dr Kealey did make the asserted comment and again in context we accept that it was an act of harassment bin the context of all that had been taking place and Dr Kealey’s seniority. It was unwanted, related to the Claimant’s philosophical belief and had the effect of creating the prescribed environment. It was reasonable to do so. Allegation 2.2.14 is well-founded and is an act of harassment and is therefore partially upheld 196. 2.2.15 From 4 November 2022, did R permit discriminatory content to remain on the Distillery blog following C’s complaint of 3 November 2022, and take no action? (GoC, appendix, para. 30);

[197]There are a number of comments which are critical of the view expressed in the question which are arguably more explicit than the initial article calling the questioner (and by extension anybody with gender critical views) a “bigot”, “transphobic” and suggested the question exhibited “arrogance”, intimidatory conduct, and self-absorption. We accept these comments were unwanted. We accept that they were related to the Claimant’s belief, and we accept that they had the prescribed effect and indeed we consider that the purpose of the comments was to create the prescribed environment. Allegation 2.2.15 is well-founded and is an act of harassment and is therefore upheld 198. 2.2.16 On 9 December 2022, did R ignore C’s complaint under the conflict resolution procedure and ask him to raise it directly with Dr Kealey, the alleged perpetrator? (GoC, appendix, para. 33)

[199]We consider that whilst other options were possible, we do not consider that this amounts to harassment and indeed is consistent with what we see as the aim of conflict resolution policy of trying to deal with matters at a relatively informal level if at all possible. Mrs Taylor had suggested to the Claimant the option of escalating to Ms Wedderburn at Stage 2 (353) and on balance the Claimant had decided to escalate it to her. There was a meeting planned with Dr Kealey which was proximate to the escalation, and it seems reasonable for that conversation to take place before moving to Stage 2 and all the investigation that would go with it. On 9 December (358) the Claimant acquiesces to the meeting and in that email, (358), we are unable to detect any suggestion that the Claimant considered the suggestion was harassing in nature. The Claimant although sceptical of any progress went to the meeting. with Dr Kealey and then renewed his desire to move to Stage 2 thereafter. To say that the request to go to Stage 2 was ignored is incorrect. It was considered and an alternative course which the Claimant accepted was taken. Whilst the Claimant may have preferred to escalate it the decision to see Dr Kealey again was not unwanted. If it was unwanted the Claimant would have refused to go. Nor do we find that Ms Wedderburn’s actions had the required purpose or effect. Allegation 2.2.16 is not well-founded as an act of harassment and is dismissed. 200. 2.2.17 On 13 January 2023, did Dr Kealey state inter alia by email that(a) C had not highlighted any bullying or harassment and that he had not raised any “attacks” for a resolution; and

(b) openly expressing a gender critical view on the Distillery blog and in the workplace was not acceptable? ((GoC, appendix, paras. 35).

[201]These were sentiments expressed by Dr Kealey in his letter. The whole tone of his letter has shifted to being far more defensive than that at the meeting on 12 December and the letter shortly afterwards (387- 390). The Tribunal find it inconceivable that Dr Kealey believed (if in fact he did) that the Claimant had not highlighted any bullying or harassment and had not set out any attacks on him. Many had been presented to Dr Kealey but certainly in the early meetings Dr Kealey had not seemingly bothered to look at the links provided. That suggests to the Tribunal that despite Dr Kealey’s protestations to the contrary he never really took the Claimant seriously. Again Dr Kealey expressed the view that the expression of a gender critical view was not permitted.

[202]The Tribunal have no hesitation in finding that Dr Kealey’s interventions, attitude, lack of understanding and lack of action was very unhelpful. He was embedded in supporting the LGBT+ group and we find lost sight of his obligation to be impartial in line with the Civil Service Code. His continued denial of the Claimant’s belief and his right to be able to express that belief so long as it was in an appropriate fashion was highly unfortunate. His seniority exacerbated the concern the Claimant had that his “sort” were not welcome. We consider that this letter was harassment. It was an unwanted (and an untrue) representation of what had gone before, and a further example of the one-eyed approach Dr Kealey had to the issue. We reject his protestations to the contrary. We consider by this stage Dr Kealey was seeking to head off any potential constructive dismissal claim and that is why he wrote in the terms he did.

[203]At the paragraph numbered 5 Dr Kealey said: “I have clearly shared that people who hold gender critical views are equally respected and belong at DSTL. Any instances where this does not occur will be dealt with appropriately and quickly and there's no acceptance of attacks in the workplace. You have not raised any attacks for resolution.” Whilst Dr Kealey may have intimated his “support for all”, his actions or inactions do not bear that out and we do not accept that the Claimant and others holding the same belief were equally respected by Dr Kealey nor many of the individuals either posting the original blogs or commenting thereon. The Claimant raised what he contended were numerous attacks over a long period and nothing was done. It is inconceivable to think that such inaction would have been occasioned with other philosophical beliefs or indeed any other protected characteristics. Gender critical beliefs were, in short, not respected at all and there was no protection from the adverse comments / abuse towards those who held such views. Allegation 2.2.17 is wellfounded and is an act of harassment and is therefore upheld. 204. 2.2.18 On 20 January 2023, did Dr Kealey reject C’s complaints about ongoing harassment out of hand? (GoC, appendix, paras. 36 to 37).

[205]The short answer to this question is “Yes”. The letter continues the increasingly defensive and curt communications towards the end of the timeline by Dr Kealey. It had been agreed that the Claimant would speak with Dr Kealey and then “we can see if that resolves your concerns and if not then we will look at next steps” Wedderburn (359). HR had made it clear that the dialogue with Dr Kealey was at Stage 1 a / 1b and that Ms Wedderburn would be the person to write in relation to Stage 2 (353). If necessary, the Claimant was entitled to go to Stage 3 later as well. Dr Kealey on 20 January simply pulls the plug and confirms that which he had written on 13 January that the Claimant’s “concerns … are now closed and this email concludes … the conflict resolution process that you started.”

[206]Clearly this is completely against the rights that the Claimant has under the Respondent’s own Conflict Resolution Procedure. The act was unwanted, created /maintained /exacerbated the hostile environment and it was entirely reasonable for the Claimant to consider that was so. Allegation 2.2.18 is well-founded and is an act of harassment and is therefore upheld. 207. 2.2.19 Did the draft blog post that Dr Kealey sent to the Claimant on 13 February 2023, amount to a retrenchment on Dr Kealey’s promise (made in meetings on 12 and 15 December 2022) to write a blog post that would resolve the issues. Did the draft blog post have the purpose or effect that it prevented C from expressing gender critical beliefs openly at work or at all on Distillery? (GoC, appendix, paras. 39).

[208]The answer to those question again is Yes. There was a clear statement that he was reminding staff that “expressing gender critical views is not allowed at Dstl” (406). In the context of all that had gone before we find this to be a further act of harassment on the part of the Respondent. It was unwanted, was related to the Claimant’s belief and had the effect of creating /maintaining /exacerbating the hostile atmosphere. Objectively the Claimant’s view was reasonable. Allegation 2.2.19 is well-founded and is an act of harassment and is therefore upheld. Direct Discrimination

[209]Direct Discrimination is defined at section 13 of the Equality Act 2010 which, so far as is relevant, reads that a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[210]A successful direct discrimination claim depends on a tribunal being satisfied that the claimant was treated less favourably than a comparator because of a protected characteristic. It is for the tribunal to decide as a matter of fact what is less favourable. The test posed by the legislation is an objective one. Under the EHRC Employment Code when it explains less favourable treatment in the context of direct discrimination it records that: “The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated, or would have treated, another person.” (Para 3.5).

[211]It follows from the wording of section 13 (1) of the EqA that the statutory comparator must not share the claimant’s protected characteristic. S.23(1) of the EqA provides that on a comparison for the purpose of establishing direct discrimination there must be ‘no material difference between the circumstances relating to each case’. In Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, Lord Scott explained that this means that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class”. That said the EHRC Employment Code makes it clear that “what matters is that the circumstances which are relevant to the Claimant’s treatment are the same or nearly the same for the Claimant and the comparator” (para 3.23).

[212]In this matter the Claimant has not identified an actual comparator and in those circumstances a hypothetical comparator is put forward at 3.2.1 of the List of issues “an employee who did not share the Claimant’s philosophical belief but who in all other material respects did not differ from the Claimant.”

[213]The existence of an evidential basis for a tribunal to find that the Claimant has suffered detrimental treatment by reason of the relevant protected characteristic is not, in itself, sufficient grounds for holding that he or she has been unlawfully discriminated against contrary to S.13. It has also to be clearly established that, in the absence of a real comparator, a hypothetical comparator, correctly constructed to include all the relevant circumstances apart from the relevant protected characteristic, would have been treated differently (i.e. more favourably). In Gould v St John’s Downshire Hill

2021 ICR 1

, EAT, Mr Justice Linden put it in the following terms: “Where a tribunal does construct a hypothetical comparator, this requires the creation of a hypothetical “control” whose circumstances are materially the same as those of the complainant save that the comparator does not have the protected characteristic… The question is then whether such a person would have been treated more favourably than the claimant in those circumstances. If the answer to this question is that the comparator would not have been treated more favourably, this also points to the conclusion that the reason for the treatment complained of was not the fact that the claimant had the protected characteristic.”

[214]There may be circumstances in which the construction of any hypothetical comparator adds little. In Stockton on Tees Borough Council v Aylott

2010 ICR 1278

, CA, Lord Justice Mummery was of the view that where it was absolutely clear that the treatment in question was on a prohibited ground, the need to construct a comparator was less of an issue. Mummery LJ did acknowledge, however, that a hypothetical comparator should not be dispensed with altogether in such cases as “it is part of the process of identifying the ground of the treatment and it is good practice to cross check by constructing a hypothetical”.

[215]In Shamoon, the view was taken that, at times, attempting to identify an appropriate actual or hypothetical comparator, may run the risk of failing to focus on the primary question, namely, why was the complainant treated as he or she was? If there were discriminatory grounds for that treatment, then, as Lord Nicholls said there will “usually be no difficulty in deciding whether the treatment… was less favourable than was or would have been afforded to others”. The Court viewed the issue as essentially boiling down to a single question: did the complainant, because of a protected characteristic, receive less favourable treatment than others? Similar comments were made by the Court of Appeal in Stockton on Tees Borough Council v Aylott

2010 ICR 1278

where it was stated that, “…the decision whether the Claimant was treated less favourably than a hypothetical employee of the council is intertwined with identifying the ground on which the claimant was dismissed. If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for his dismissal supplies the answer to the question whether he received less favourable treatment”.

[216]It may be helpful in some cases to consider whether the question of less favourable treatment should be postponed until after the Tribunal have decided why the particular treatment was afforded to the Claimant. In Law Society and ors v Bahl

2003 IRLR 640

, EAT, one of the consequences of this approach was that where the tribunal has addressed the primary question, it will not generally be necessary for it actually to formulate the precise characteristics of the hypothetical comparator. Once it is shown that the protected characteristic had a causative effect on the way the complainant was treated, it is almost inevitable that the effect will have been adverse, and therefore the treatment will have been less favourable than that which an appropriate comparator would have received. Similarly, if it is shown that the characteristic played no part in the decision-making, then the complainant cannot succeed and there is no need to construct a comparator.

[217]A complaint of direct discrimination will only succeed where the tribunal finds that the protected characteristic was the reason for the Claimant’s less favourable treatment. In Gould v St John’s Downshire Hill

2021 ICR 1

, EAT, Mr Justice Linden, explained: “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… and the influence of the protected characteristic may be conscious or subconscious.”

[218]The crucial question, in every case, is why the complainant received less favourable treatment and was it on the ground of the relevant protected characteristic or for some other reason?

[219]In some cases, there is no dispute at all about the factual criterion applied by a Respondent. In other words, it will be obvious why the complainant received the less favourable treatment. If the criterion, or reason, is based on a prohibited ground — in other words, inherently discriminatory or indissociable from the protected characteristic, direct discrimination will be made out.

[220]In some cases, the reason for the less favourable treatment is not immediately apparent — i.e. the act complained of is not inherently discriminatory. In those it is necessary to explore the mental processes, conscious or subconscious, of the alleged discriminator to discover what facts operated on his or her mind.

[221]Direct discrimination can arise in one of two ways: where a decision is taken on a ground that is inherently discriminatory, or where it is taken for a reason that is subjectively discriminatory.

[222]The ‘but for’ test remains one way of showing direct discrimination, but principally in cases where some kind of criterion has been applied that is indissociably linked to a protected characteristic and, in that sense, is inherently discriminatory. However, in other cases, the best approach may be to decide whether allegedly discriminatory treatment was because of’ a protected characteristic is to focus in factual terms on the reason why the employer acted as it did. This entails the tribunal considering the subjective motivations — whether conscious or subconscious — of the putative discriminator in order to determine whether the less favourable treatment was in any way influenced by the protected characteristic relied on. To do this, the tribunal will be required to examine evidence as to what the relevant mental processes were in order to identify what operated on the putative discriminator’s mind and caused him or her to decide to act in that particular way. Such evidence will include evidence of the decision maker but also evidence as to the context in which the decision was made. Factual Findings on Direct Discrimination Claims

[223]We need not deal with any of the Claims that we have found to be harassment. We have made many findings of fact both when considering the harassment claims and generally and do not consider that repeating those findings in this section would be necessary. We will try and deal with like allegations together.

[224]We find that the Respondent had reported his concerns about his treatment to a senior manager who should have caused an investigation to be carried out or action to be taken from the date he sent his concerns to Mr Murray Jones on 29 November. There is ample evidence which we have detailed throughout these reasons which would call for an explanation from the Respondent. No such explanation has been offered from Mr Murray Jones and we find that his failure to take down the offending posts was because of the Claimant’s belief. We accept that had the Claimant complained about discrimination in respect of another protected characteristic or indeed even another belief action would have been taken. So far as Mrs Taylor and Dr Kealey are concerned Mrs Taylor failed to take appropriate action from 6 June and Dr Kealey from early July.

[225]We find that from the 29 November the Respondent permitted content to remain on Distillery which should have been removed and we find that that was less favourable treatment than would have been meted out to a hypothetical comparator. Accordingly from that date when the Diversity lead was seized with knowledge the Claimant was the subject of direct discrimination. Accordingly, 2.2.4, 2.2.7, 2.2.9 were acts of direct philosophical belief discrimination and those claims are well-founded.

[226]We do not accept that the moderators failing to remove the post of 31 August was an act of direct philosophical belief discrimination. We have recorded that we are satisfied that the moderators were focussing upon a very narrow remit primarily based upon the identifier when reported. We are satisfied that the moderators would have acted in the same way whatever protected characteristic harassment was made and so the Claim at 2.2.2 is not well founded and is dismissed.

[227]Mr Whitaker was acting under instructions when he spoke with the Claimant on 13 January, and we accept the evidence given by the respondent as to why he was spoken to and that it was a very narrow call. We find that on that occasion a decision would have been taken to “have a word” whatever the protected characteristic at hand. We are satisfied that the Claimant was not treated less favourably because of his protected characteristic in relation to that issue and the Claim at 2.2.5 is not well founded and is dismissed.

[228]Mr Whitaker was again prevailed upon to speak to the Claimant about a complaint that had been made about “liking” a gender critical post. We are satisfied that would not have happened in circumstances where the Claimant held different belief or was involving another protected characteristic and therefore consider that direct discrimination is made out on that occasion. We accept that it amounted to less favourable treatment. We do not blame in any way Mr Whitaker as he was simply following instructions which we detected he was highly reluctant to do. 2.2.10 is well-founded and succeeds.

[229]We have made our findings previously about Ms Wedderburn and the decision she took about allowing the Claimant another chance to try and resolve matters with Dr Kealey before she would consider escalating matters. The Claimant had indicated that notwithstanding Dr Kealey’s role in his complaints that he was content to and had arranged to meet with Dr Kealey. We do not consider that decision amounted to less favourable treatment because of the Claimant’s philosophical belief and that Claim (2.2.16) is not well-founded and is dismissed. Victimisation

[230]The Claimant has set out eleven specific documents that he asserts are protected acts as defined within Section 27 of the EqA. We consider each of those in turn having considered the parties’ representations in relation thereto.

[231]The types of protected act asserted are those represented at (c) and (d) of section 27 (1) which are as follows: “(c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act”.

[232]Section 27 (1) (d) covers allegations, whether or not express, made by the Claimant that the employer or another person has contravened the EqA. It is not necessary that the EqA actually be mentioned in the allegation or even be envisaged as coming into play. However, the asserted facts must, if verified, be capable of amounting to a breach of the EqA.

[233]Whether a general complaint of discrimination amounts to a protected act under S.27(2)(d) will depend on the facts of the case and that section imposes no restrictions as to whom the allegations must relate. The subsection covers both allegations made about A (the alleged victimiser) as well as allegations made about ‘another person’. It is therefore possible for an employer to victimise an employee because the employee has made allegations about an entirely unrelated person. In addition, S.27(2)(d) does not specify to whom the allegations must be made.

[234]Protection from victimisation under S.27(2)(d) is still available even if the allegation turns out to be untrue. However, S.27(3) provides that making a false allegation will not be protected if it is done in ‘bad faith’. There is no suggestion of bad faith in this case.

[235]Dealing with each alleged protected act in turn our conclusions are as follows: a)4.1.1 - 2 September 2021: C’s email to R reporting the conduct set out at para. 2.2.1 above? (PA 1) (p.81-82) This email is sent to Dstl Distillery Management which was the email address for the Moderators. Following a request, it identifies the specific allegations about Professor Scott that had concerned the Claimant and then he goes onto write, “The implication is that anybody who holds gender critical beliefs should not be (sic) receive public recognition for their work, and therefore contributes to a hostile environment for colleagues who hold those beliefs even though gender critical beliefs are a protected belief under the Equalities (sic) Act. This means that to say that those who hold those beliefs should not be recognised for their work is legally equivalent to saying that (for example) black people should not be recognised for their work - a position that I'm sure would not be tolerated on Distillery.” The Tribunal are satisfied that the Claimant has made an allegation that the post had provided a detriment (the creation of a hostile environment) to those who held a gender critical belief. In those circumstances we consider that this email was a protected act made to the moderators alone. b)

4.1.2 - 29 November 2021: C’s email to R reporting the conduct set out at para. 2.2.3 above? (PA 2) (p.127) This was an email from the Claimant to Richard Murray Jones, who was at that time Head of Diversity and Inclusion. In that email the Claimant writes, “I also cannot see how allowing this thread to remain online can possibly be consistent with DSTL's duty not to create, allow, or enable an environment which is hostile, degrading, or humiliating to those of our colleagues who hold “gender critical” views and it would be good to have formal confirmation whether or not such people are welcome to work here”. The Tribunal are satisfied that the Claimant asserts that actions being taken by the Respondent are providing a detrimental and discriminatory workplace for those individuals who hold a gender critical view. The Tribunal consider that there is sufficient within this email to amount to a protected act pursuant to section 27 (2) (d) EqA. c)

4.1.3 - 6 June 2022: C’s email to Susan Taylor reporting the conduct set out at paras. 2.2.5, 2.2.8, 2.2.9 and 2.2.10 above, and further reporting that colleagues were being allowed to aggressively attack him on the basis of his philosophical belief and that R had ‘picked a side’ on the gender issue leaving employees of R free to promote the ‘other’ (i.e., non-gender critical) side of the argument? (PA 3) (237- 238) The Claimant asserts that the September 2021 post and the November 2021 post creates a hostile and intimidating environment for those who share the beliefs of either Professor Stock or Professor Scott and they are identified as being gender critical beliefs. The Claimant identifies six other pieces of material within Dstl which is critical in some way against gender critical beliefs and provides links to them. He goes on to say that he believes that Dstl have picked a side and that people with “my” beliefs are not welcome at Dstl. He states that “this” by which he can only mean the antipathy against gender critical beliefs is having an effect on his mental health, family life and is making him consider leaving Dstl. He also asserts that colleagues are being allowed to aggressively attack him “based upon my protected characteristics” and that Dstl allow, promote, and endorse an attitude of open, hostile, and intimidating interference to his beliefs. The Tribunal are quite satisfied that a fair reading of the email could only lead to a conclusion that the Claimant is making a complaint that those with gender critical beliefs including the Claimant are being treated less favourably than others and /or are being harassed. The Tribunal is satisfied that this email is a protected act as defined at subsection (d) in the Equality Act 2010. d)

4.1.4 - 17 June 2022: C’s email to Sue Taylor reporting that R was endorsing one side of the debate and discriminated against those with gender critical beliefs? (PA 4) (239-240) The Claimant identifies in this email a number of parts of the Line Manager’s Guide which he views as taking a stance against those with gender critical views. He states that the Respondent is “allowing the promotion of discrimination against those who hold to the other side” and we are satisfied that it is clear that “the other side” refers to those who hold gender critical views and that Mrs Taylor would have known that the Claimant was included in that group. He speaks of belief being viewed by the Respondent as being a protected characteristic near to the bottom in a protected characteristic hierarchy. We are satisfied that the definition at subsection (d) is met, and this email does amount to a e)

4.1.5 - 27 September 2022: C’s email to Paul Kealey to report the previous course of harassment and specifically the conduct set out at para. 2.2.11 above? (PA 5) (283-284) The Claimant sets out that it is a matter of concern to him that Dstl seem to consider it acceptable to treat those who hold a belief worthy of respect under the Equality Act 2010 in an unfavourable way. He goes on to say that is not surprising taking into account the Line Manager’s Guide which he asserted promoted such a view as well as Dr Kealey’s own blogs. The Claimant suggests that such behaviour in relation to another protected characteristic would not be treated by the Respondent in such an adverse way. The cumulative effect is to create an environment that is hostile etc, (a harassing environment). We are satisfied that this is sufficient to meet the definition at subsection (d) and this email does amount to a protected act. f)

4.1.6 - 4 October 2022: Did C email Sue Taylor reporting that R’s onesided approach to philosophical belief constituted unlawful discrimination? (GoC, appendix, para. 24) (PD 6) (289) The Claimant explains that Dr Kealey’s failure to look at any of the links that had been sent highlighting issues and openly saying that any views contrary to the rights of LGBT+ people should not be expressed in the workplace. We find that to be an allegation of discriminatory behaviour on the part of Dr Kealey and is a protected act g)

4.1.7 - 14 October 2022: Did C email Sue Taylor to report his belief that R’s policy was to treat his philosophical belief as less important than other protected characteristics? (GoC, appendix, para. 25) (PD 7) (319) We find that the above statement is an accurate description of part of the email and that it is an allegation of gender critical beliefs not being respected to the same degree as other protected characteristics. The email a complaint of philosophical belief discrimination. The email is a h)

4.1.8 - 2 November 2022: Did C email Sue Taylor to report that R’s treatment of his philosophical belief as transphobic and its tolerating of attacks on his belief constituted discrimination? (GoC, appendix, para. 27) (PD 8) (322) We find that the above statement is an accurate description of part of the email and that it is an allegation that those with gender critical beliefs are not as welcome to work at Dstl as other beliefs. The email a complaint of philosophical belief discrimination and is a protected act. i)

4.1.9 - 4 November 2022: Did C email Sue Taylor reporting the conduct set out at paras. 2.2.13 and 2.2.14 above? (GoC, appendix, para. 30) (PD 9) (331) The Claimant asserts that Dr Kealey has created a hostile environment for those with gender critical beliefs and it is clear from the tone and the content of the email that it was unwanted. The email is a complaint of philosophical belief harassment and is a protected act. j)

4.1.10 - 18 November 2022: Did C resign and explain in an email to his line manager that he was resigning because of harassment under the EA 2010? (GoC, appendix, para. 31) (PD 10) (343) We find that to be an accurate description of part of this email. The email is a complaint of philosophical belief harassment which we find to be a k)

4.1.11 - 28 November 2022: Did C email Chief People Officer Robyn Wedderburn to summarise the above disclosures (sic) and to report that Dr Kealey’s blog post of 30 June 2022 (see para. 2.2.11 above) constituted harassment because it implied that C’s beliefs were unworthy of respect in a democratic society? (GoC, appendix, para. 32)? (PD 11) (348) We find that to be an accurate description of part of this email. The email is a complaint of philosophical belief harassment which we find to be a

[236]It follows from the preceding paragraphs that we consider that each of the matters raised from 4.1.1 to 4.1.11 inclusive are protected acts. Section 27 states that a person(a) (A) victimises another person if A subjects B to a detriment because

(b) (B) has done a protected act.

[237]Victimisation can be made out even if the discriminator did not consciously realise that he or she was subjecting the Claimant to a detriment because of the protected act. Some consideration will need to be given to the mental processes of the alleged discriminator and at times the grounds for any decision will need to be deduced or inferred from the surrounding circumstances.

[238]No comparator is required, and a detriment would be established if a reasonable worker would take the view that the treatment complained of would be to his detriment. Dealing with each of the allegations of detriment in turn: 239.5.1.1 In response to C’s disclosures of 2 September 2021 and 29 November 2021 (PD 1) and (PD 2), set out at paras.5.1.1.1 Did R refuse to remove the alleged unlawful content complained of by C; (GoC, appendix, paras. 4 and 11(a));

5.1.1.2 Did R delay in responding to C’s complaints, namely, by failing to contact C until 27 May 2022; (GoC, appendix, paras. 11(d) and 15) and

5.1.1.3 Did R warn or threaten C, as set out at paras. 1.1.1 and 2.2.10 above? These allegations are not well-founded. The content was modified by the moderators, and they focussed upon the slander elements and their focus was on correcting the post and getting a revised version back onto Distillery. We do not accept that any failure to take down the posts by the moderators was because of the protected acts within the complaint. Thereafter we do not consider that the reason why the posts were not taken down or sought to be taken down by Taylor or Kealey flowed from the fact that the complaint was a protected act. In fact, until very late in the day (not until the correspondence post the 12 December meeting did the Respondent seem concerned by the fact that the Claimant was making the allegations of discrimination. We do not accept that the delay in contacting the Claimant over his complaints was because he had done any of the protected acts. Whilst the delay in dealing with matter was very regrettable and corrosive to the Claimant’s relationship with the Respondent, we accept that Mrs Taylor was dealing with a substantial number of issues but primarily the Claimant’s complaints did not register with her as a priority. We have made the findings of fact above in relation to what Mr Whitaker said and found earlier that whilst it was an uncomfortable discussion that it was reasonable for Mr Whitaker to bring the complaint up and inform the Claimant that one had been made. We do not accept that the reason why the information was relayed was because the Claimant had done a These three allegations of victimisation are not well-founded and are 240.

4.1.1 and

4.1.2 above:

5.1.2.2 Taking no action (or any adequate action) in response to C’s report that R was allowing the promotion of discrimination against his philosophical belief? (GoC, appendix, paras. 17 to 19).

5.1.2.3 Taking no action (or any adequate action) by delaying a meeting between himself and C concerning the former’s blog post of 30 June 2022 until 7 September 2022; (GoC, appendix, para. 19);

5.1.2.4 Taking no action (or any adequate action) by ignoring C’s report of harassment raised during the meeting of 7 September 2022; (GoC, appendix, para. 19). These four victimisation claims focus upon two emails to Mrs Taylor in June. The Claimant has not linked it cumulatively to the other two protected disclosures made previously. We deal with the issues specifically as pleaded. It is right to say that immediately after the discussion with Mrs Taylor she did nothing. We have found that she was blasé about the issues raised. She responded thanking the Claimant for sharing his views and said she needed to do some reading, take some advice and chat to a couple of people and that she would revert to him in due course (241). Matters were then reignited by Dr Kealey’s post when the Claimant wrote to her further. She immediately suggested that Dr Kealey was the person to talk to and a meeting was called ultimately for September. We find that Mrs Taylor was at a loss what to do. We accept that she was busy with various issues that individuals were raising and when the opportunity to came to pass the ball onto Dr Kealey she took it. Any lack of action on her part was not a detriment caused by the Claimant undertaking protected acts. These findings deal with 5.1.2.1 and 5.1.2.2. There was a delay in the meeting with Dr Kealey and that was unfortunate. Having said that we have seen correspondence where both parties were trying to make it happen, but the primary reason was that diaries and holidays did not combine to allow it to happen quicker. We accept that Dr Kealey did not consider it a particularly urgent matter but then we can see no sign that the Claimant also considered there an urgent need either at the time in correspondence. Any delay was not caused by the fact that the Claimant did a protected act. There was no real action after the meeting on 7 September. The main reason in our view was that Dr Kealey still did not really understand what the Claimant was complaining about. Whilst we accept that he should have understood as what the Claimant was saying appears clear to us, we do not accept that Dr Kealey failed to act because a protected act had been undertaken by the Claimant. These four allegations of victimisation are not well-founded and are 241.

4.1.3 and 4.1.4, did R or its employees deliberately fail to act by:

5.1.3.2 In the same email misrepresent C’s disclosures as an attempt to challenge the protection in law of LGBT+ rights? (GoC, appendix, para. 23). This allegation is expressed as being a detriment flowing from the protected acts contained within the email dated 27 September 2022 in which the Claimant identified with links the various blogs of concern to Dr Kealey, expressed his concerns over the Line Manager’s Guide and expressed his concerns about the blog Dr Kealey had written in June. Again, we consider that there is evidence that Dr Kealey still did not really understand or comprehend the Claimant’s position. That is likely to be because he did not invest sufficient time in looking at the links. We accept that his email did not adequately address the issues the Claimant had raised although the Claimant replied by saying Kealey’s position was clear. The actions of Dr Kealey were not because the Claimant had undertaken a protected act in his email. Dr Kealey still seemed to be remarkably unmoved by the allegations. This allegation of victimisation is not well-founded and is dismissed. 242.

5.1.5 In response to C’s disclosure of 14 October 2022 (PD 7), set out at para. 4.1.7 above, did R or its employees fail to act (or fail to take adequate action)? (GoC, appendix, para. 26).

5.1.6 In response to C’s disclosure of 2 November 2022 (PD 8), set out at para. 4.1.8 above, did R or its employees fail to act (or fail to take adequate action) by declining to amend its policy towards employees with C’s philosophical belief? (GoC, appendix, para. 30) Whilst we accept that there was a failure to take any action and for reasons cited earlier in this judgment, we do not find that this protected act was a reason or part of the reason why no action was taken. It was simply a continuation of the Respondent’s failure to properly understand the Claimant’s viewpoint or complaint. These allegations of victimisation are not well-founded and are 243.

5.1.7 In response to C’s disclosure of 4 November 2022 (PD 9), set out at para. 4.1.9 above, did R fail to act (or fail to adequately address) in relation to the post C complained of, beyond undertaking to monitor it? (GoC, appendix, para. 30) Taylor asked the Claimant to set out his belief in full. She was aware before that that the issue was in respect of a gender critical belief generally. Again we accept that there was no adequate action taken but we cannot see that this was because a protected act had been undertaken but merely a continuation of the insouciant attitude that the Respondent exhibited about the Claimant’s allegations throughout. The evidence shows that they were entirely unmoved by the Claimant’s complaints. These allegations of victimisation are not wellfounded and are dismissed. 244.

5.1.8 In response to C’s disclosures of 18 November 2022 and 28 November 2022 (PD 10 and PD 11), set out at paras. 4.1.10 and 4.1.11 above.5.1.8.1 On 9 December 2022, did Ms Wedderburn decline to engage with C’s complaints and/or deliberately state or imply that no formal investigation into C’s grievance was necessary; (GoC, appendix, para. 33);

5.1.8.3 Did Dr Kealey’s email to C of 13 January 2023 constitute a detriment because: a) He stated that C had not” In all of our discussions” …” raised any concerns impacting your ability to perform your job, you have not highlighted any bullying or harassment at work.” (GOC, appendix, paragraph 35(a)); b) His allegation that C’s “departure from R merely coincided with C’s protected disclosures” amounted to “a baseless accusation of lying or at least to ‘gaslighting’” (GOC, appendix, paragraph 38); c) He denied that C’s philosophical belief had been attacked; and d) He terminated C’s formal grievance prematurely; (GoC, appendix, paras. 35 to 38).

5.1.8.4 Did Dr Kealey in his email to C of 20 January 2023 continue to deny that C had raised any acts of harassment with him; (GoC, appendix, para. 36); and

5.1.8.5 On 13 February 2023, did the draft blog post that Dr Kealey shared with C suggest that the expression of C’s philosophical belief would be prohibited but that other beliefs would be permitted? (GoC, appendix, para. 39). These detriments are specifically linked to the Claimant’s protected acts on 18 November and 28 November. They are pleaded specifically in that way, and we will respect the Claimant’s desire to put his claim in that way. 5.1.8.1 We do not consider that it is correct that Ms Wedderburn declined to engage with the Claimant’s complaints and/or deliberately state or imply that no formal investigation into C’s grievance was necessary in the email of 9 December. We have dealt factually with this allegation previously. The 9 December email is a holding email that in our view is consistent with trying to deal with complaints at the lowest level. Ms Wedderburn suggests seeing if the meeting with Dr Kealey resolves matters and if not “we will look at next steps”. We do not accept that the allegation as drafted is made out factually. Even if the email could be read in the way suggested by the Claimant, we do not accept that the response was on account of either of the protected acts cited. 5.1.8.2 We do not accept that Dr Kealey did in his letter to the Claimant of 15 December 2022 concede that employees with C’s philosophical belief had been harassed but refuse to act upon C’s reports of harassment. On the findings we have made he should have come to that conclusion, but we are unable to find that he did from the wording of his letter. Even if that is deemed to be a fair reading of that we do not find that he concluded that on account of the protected acts cited. 5.1.8.3 and 5.1.8.4 As stated earlier in these reasons there was a marked difference in tone between the December meeting and the 15 December letter and the email on 13 January 2023. In the December correspondence Dr Kealey still appears to be working with the Claimant all be it in his own way and seeking a mutually acceptable solution. His December correspondence is very different and has hallmarks of Dr Kealey placing the wagons in a circle so as to reduce the chances of an attack. We find that the cause of this change of heart was the Claimant’s email dated 16 December which was not as “thankful” or “appreciative” of Dr Kealey’s efforts as Dr Kealey believed was deserved. For the record we find that the Claimant’s view of Dr Kealey’s efforts to be a more accurate assessment than Dr Kealey’s view of what he deserved. We find that Dr Kealey finally caught on, either from his own belated perception or guided by others, most likely Ms Wedderburn, or Mrs Taylor that the Claimant was likely to, or there was at the very least a significant risk of bringing a claim for constructive unfair dismissal and/or discrimination. We are satisfied that that is why Dr Kealey went into full defence mode because of that threat and it was that which caused him to deny (somewhat absurdly) he matters raised at 5.1.8.3

(a) to (d) inclusive and 5.1.8.4 and in particular closing down any conflict resolution procedure when the Claimant had the right to go to Stage 2 and 3. Whilst understandable the conduct of Dr Kealey does him little credit. We find that the emails of 13 and 20 January do constitute a detriment and contains information that Dr Kealey cannot genuinely have believed such as not raising any allegations of bullying or harassment. Also we find that not permitting the Claimant to go to the next stages of the Conflict Resolution Procedure when the same had already been mooted by HR was no more than a punishment for the Claimant. The Claimant was in our finding victimised pursuant to section 27 (1)

(b) in that he was subjected to a detriment because Dr Kealey believed that he was going to bring a discrimination claim against the Respondent. We are sure that was the situation but are aware that the specific allegation was not put to Dr Kealey. Having found that it is not how the Claim is put and so the specific claims of victimisation pleaded are not well-founded and are dismissed. The reality is that it is highly unlikely that compensation will be materially affected by the potentially successful claim having been put forward. We reject the allegation at 5.1.8.5. Dr Kealey’s view re the right to expressing the Claimant’s philosophical belief was the same before and after the alleged protected acts.

[245]The Claims of victimisation are not well-founded and are dismissed. Unfair Constructive Dismissal

[246]The statutory basis for constructive dismissal is set out at section 95 (1) (c) of the ERA 1996 and that section states that an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[247]It follows that the test for constructive dismissal is whether the employer’s actions or conduct amounts to a repudiatory breach of the contract of employment (Western Excavating (ECC) Limited v Sharp

(1978) 1 QB 761

[248]It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Malik v BCCI SA

(1998) AC 20

[249]Any breach of the implied term of trust of and confidence would amount to a repudiation of the contract of employment and the test of whether or not there has been a breach of the implied term is objective (Malik at 35C). There is no need to demonstrate intention to breach the contract. Intent is irrelevant.

[250]A relatively minor act may be sufficient to entitle the employee to resign and leave the employment if it is the last straw in a series of incidents. The particular incident which finally causes the resignation may in itself be insufficient to justify that action, but that act needs to be viewed against a background of such incidents that it may be considered sufficient to warrant treating the resignation as a constructive dismissal. It is the last straw that causes the employee to terminate a deteriorating or deteriorated relationship.

[251]It is clear that the repudiatory conduct may consist of a series of acts or incidents, some of which may be more trivial, which cumulatively amounts to a repudiatory breach of the implied term of trust and confidence. The question to be asked is whether the cumulative series of acts alleged, taken together, amount to a repudiatory breach of the implied term. Although the final straw may be relatively insignificant, it must not be entirely trivial. It must contribute something to the preceding acts.

[252]The paragraphs prior to his one within this section are a summary of Lord Dyson’s Judgment in London Borough of Waltham Forest v Omilaju

(2005) ICR 481

.227. In Kaur v Leeds Teaching Hospitals NHS Trust

(2018) EWCA Civ 978

it was identified that normally it will be sufficient to answer the following questions to ask the following questions to establish whether an employee has been constructively dismissed: a) What was the most recent act or omission on the part of the employer which the employee says caused or triggered his or her resignation? b) Has he or she affirmed the contract since that date? c) If not was that act or omission in itself a repudiatory breach of contract? d) If not, was it nevertheless a part of a course of conduct which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence? e) Did the employee respond to that breach?

228. The Claimant has set out in the List of Issues the matters that he contends led him to the conclusion that the Respondent was in breach of the implied term of trust and confidence thereby entitling him to resign and claim constructive dismissal. We do not wish to repeat the findings already made in these reasons but in summary: a) We accept that from the beginning of the chronology in this Claim the Claimant raised complaints up until the date of resignation and the Respondent failed to adequately address the Claimant’s concerns that he was being harassed and /or discriminated against on account of his gender critical views. There were also times when there was actually no response at all to those complaints. The complaints were legitimate, they were having an adverse effect on the Claimant, yet they were not dealt with adequately. The growing sense of dismay the Claimant felt at the Respondent’s lack of action or even real recognition of his concerns is clear and fully understandable. b) There was a marked reluctance to acknowledge or deal with the harassment and discrimination raised by the Claimant and we accept that the Claimant was treated less favourably than a complainant would have been had the issues been any other protected characteristic or indeed almost any other belief. The key reason for this was an unblinking desire to ensure that those with gender identity views were fully supported and a failure to engage with the thought that a gender critical view was worthy and was required to be respected. c) We are quite satisfied that a particular side was taken on the gender identity / critical debate, and we also accept that the Respondent did not act impartially and thereby failed to act in accordance with the Civil Service Code in relation to the Claimant. d) We accept that the Claimant was discriminated against over a substantial period of time by the Respondent

229. We do not consider that the conduct was calculated to destroy or seriously damage the implied term of trust and confidence, but it was certainly likely to. The Claimant consistently told the Respondent the damage which it was doing and the effect it was having on his work, but the Respondent remained impervious to those entreaties.

230. We accept that the Claimant resigned because of the above fundamental breaches. He warned the Respondent of the possibility and was incredibly patient in respect of matters complained of. The Respondent had ample opportunity to address the matters but elected not to do so adequately. We are satisfied that the effective cause of the Claimant’s resignation was his treatment, some of which was discriminatory. It was the treatment by the Respondent that led him to seek alternative employment and but for that treatment he would have remained with the Respondent. It was a prudent step for him to be considering alternative employment so that he had a role to go to but the reason why he resigned remained the treatment to which he was subjected.

231. The Claimant did not affirm his contract and there was no undue delay in the resignation. Following the matters in early November and in particular Dr Kealey’s confirmation that gender critical views were not to be expressed and the continued lack of support from HR when the Claimant was advised not to get involved it was entirely appropriate for the Claimant to weigh up his options and resign. It was reasonable for him to conclude that his voice was not going to be heard and his complaints were not going to be acted upon.

232. We are satisfied that the Claimant was constructively dismissed and in the absence of any representations to the contrary we accept that the dismissal was unfair. Further as part of the reasoning for the breach of the implied term of trust and confidence was that the Respondent was discriminating against the Claimant, we also conclude that the dismissal was also an act of philosophical belief discrimination. Time Limits

233. The issue of time limits has been raised in the List of Issues where it is indicated that nay act of omission which took place before 18 October 2022 is potentially out of time. Clearly there are a number of matters which took place after that date which are in time including the dismissal. We have no hesitation in finding that the issues raised by the Claimant amount to conduct extending over a period and that the discrimination issues which we have been dealing with are all part of a common complaint. If we are wrong on that we can see no real prejudice arising to the Respondent who have been able to put forward a defence to claims and would have extended time as it would be just and equitable to do so. Future Hearings

234. There will need to be a future hearing in relation to remedy unless the parties are able to resolve that between themselves. The parties should seek to agree directions, including any requirement for expert evidence, by no later than 27 March 2025 and provide a time estimate and dates to avoid for the rest of 2025. Draft directions should be marked for the urgent attention of EJ Self. If directions cannot be agreed, then a remote case management hearing will be convened. Approved by