Discrimination – UK Employment Law Update

In For Women Scotland Ltd v The Scottish Ministers, the UK Supreme Court addressed a legal dispute about the definition of ‘woman’ under the Equality Act 2010 (EqA 2010) and the Gender Representation on Public Boards (Scotland) Act 2018 (ASP 2018). The case concerned whether the Scottish Government’s statutory guidance including trans woman with Gender Recognition Certificates (GRCs) under the term ‘woman’ was lawful. The feminist organisation For Women Scotland (FWS) argued that the EqA 2010 defines ‘woman’ strictly by biological sex, excluding trans women with GRCs from the category.

The Court unanimously upheld FWS’s appeal, ruling that ‘man’, ‘woman’, and ‘sex’ in the EqA 2010 refers to biological sex. It found that the Act’s provisions, especially those related to pregnancy, maternity, and single-sex services, only function coherently when interpreted biologically. The Court emphasised that a certificated sex approach would create impracticalities and legal inconsistencies across the Act, such as in the enforcement of single-sex spaces and protections for sexual orientation.

Furthermore, the judgment clarified that, while trans people are protected under the characteristic of gender reassignment in the EqA 2010, this does not mean that they are covered under the sex-based provisions unless those protections explicitly apply. The Court rejected the idea that the EqA 2010 allows for dual meanings of sex in different contexts, confirming that a consistent, biological interpretation is necessary for clarity and legal coherence.

However, it is important to echo Lord Hodge’s statement in his summary:

‘But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.’

While trans people may not fall under the definition of a ‘man’ or a ‘woman’ in the EqA 2010, gender reassignment remains a protected characteristic in its own right and thus are protected from discrimination on those grounds. Further, they continue to receive protection against direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender. As highlighted in the judgment, if a trans woman applies for a job and, despite performing best in the interviews, a biological man is given the role, she would still have a claim for direct discrimination because of her perceived sex and her comparator would be someone who is not perceived to be a woman. ‘The fact that she is not a biological woman should make no difference to her claim.’

The Supreme Court’s decision has significant implications for gender and equality law in the UK. By affirming that ‘sex’ in the EqA 2010 means biological sex, the ruling limits the scope of gender recognition to areas where legal rights are based on sex characteristics. However, it maintains the existing protections for trans individuals under gender reassignment provisions.

In a hotly anticipated decision, the Court of Appeal has handed down its decision in a case which looks at an employee manifesting their religious belief on social media. Higgs v Farmor’s School demonstrates that it can be difficult to rely on reputational risk alone when dismissing an employee for holding views that are seen as controversial.

Background

Mrs. Higgs, a Christian mother, who held roles as a pastoral administrator and work experience manager at Farmor’s School, voiced her views on her personal Facebook page. Her posts — criticizing the Government’s sex education policies, particularly on issues of gender fluidity and same-sex marriage —sparked a parental complaint that the language was “homophobic and prejudiced.” This complaint set off a chain of events leading to an internal investigation, disciplinary charges, and ultimately, her dismissal for alleged gross misconduct.

Mrs. Higgs challenged her dismissal on the grounds of direct discrimination and harassment under the Equality Act 2010 on the basis of her religious belief that gender is binary and that same-sex marriages are not akin to straight marriages. After bouncing between tribunals, having the claim initially dismissed by the ET then partially allowed on appeal by the EAT, the Court of Appeal eventually ruled that her dismissal was unlawful direct discrimination.

Key Legal Takeaways

Protection of Personal Beliefs

The judgment makes it clear: holding a personal belief—even one that runs counter to mainstream views — cannot serve as a standalone justification for dismissal. The Court underscored that Mrs. Higgs’s belief in a binary conception of gender and her stance on same-sex marriage are protected under the Equality Act 2010. This ruling affirms that personal beliefs, regardless of their popularity, deserve protection.

Expression vs. Belief: The Critical Distinction

A pivotal point in the decision was the distinction between the belief itself and the manner in which it is expressed. While the ET described Mrs. Higgs’s language as “florid and provocative,” the Court emphasised that an employee’s personal belief is not inherently problematic. The focus must instead be on whether the expression of that belief crosses the line into conduct that causes harm. Employers must therefore be cautious not to conflate disagreeable opinions with actionable misconduct.

The Imperative of Proportionality

Employers are required to demonstrate that any disciplinary measures are proportionate to the issue at hand. In this case, the perceived reputational risk — stemming from a solitary complaint — was deemed too speculative to justify such a drastic response. Further, Mrs. Higgs’ had provided no indication that she took this message into work, and no complaint had been made against her during the course of her employment. The ruling sends a robust message: disciplinary actions must be supported by clear evidence of harm and must align with a legitimate business aim.

Practical Implications for Employers

Separate Belief from Conduct: Employers should critically assess whether it is the underlying belief or the way it is expressed that is problematic. Criticism should target behaviour that directly undermines workplace values, not the belief itself.
Ensure Disciplinary Measures Are Justified: Any action taken against an employee for expressing a protected belief must be both necessary and proportionate. Employers need to gather objective evidence that demonstrates the actual harm caused – reputational risk alone may not be enough to justify dismissal.

Tag: Discrimination

The Biology Supreme Court: For Women Scotland Ltd v The Scottish Ministers