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‘Gender critical’ belief discrimination – where are we now?

Posted on: April 24th, 2025 by Natasha Cox

Four years ago, the concept of discrimination based on ‘gender critical’ beliefs was unheard of. However, the 2021 decision of Forstater v CGD Europe & Ors paved the way for protection under the Equality Act 2010 for individuals holding gender critical beliefs.  

Despite Forstater, there has been a slew of employment tribunal cases brought by individuals claiming their belief that sex is biological and immutable led their employers to subject them to less favourable treatment. These claimants worked in areas including the NHS, local government, charities, the education sector and even the legal profession. With trans rights supporters claiming that such beliefs are transphobic and hateful, many employers have been confused as to their obligations and fearful of ‘getting it wrong’.

Most recently, in For Women Scotland v The Scottish Ministers it was held that ‘sex’ within the Equality Act 2010 means biological sex, reigniting tensions about the interplay between the rights of trans people and the rights of biological men and women. With the Supreme Court’s decision hot off the press, this article summarises some of the key cases and legal principles that have emerged in recent years, helping employers to be confident in their decisions about balancing the rights of all parties to be treated in a way compliant with the Equality Act 2010 and help them to ensure everyone enjoys dignity and respect at work.

Forstater v CGD Europe & Ors (2022)

Maya Forstater’s consulting contract with the Centre for Global Development was not renewed after she published a series of social media messages describing transgender women as men. She brought claims of discrimination, with the employment tribunal initially ruling against her. However the Employment Appeal Tribunal later found that her beliefs were protected under the Equality Act 2010 because they were “worthy of respect in a democratic society“. At a subsequent hearing, the tribunal concluded Ms Forstater had suffered direct discrimination on the basis of her gender-critical beliefs and she was awarded compensation of over £105,500 including for loss of earnings, injury to feelings, aggravated damages and interest.

Bailey v Stonewall Equality Limited Garden Court Chambers & Ors (2022)

Barrister Allison Bailey claimed she was discriminated against for her gender-critical views after Garden Court chambers concluded that two of her personal tweets, which included gender critical views, potentially breached her professional obligations as a barrister. Bailey had co-founded LGB Alliance, an advocacy group for the rights of lesbian, gay and bisexual people, which opposed the ‘trans extremism’ it said Stonewall promulgated. Ms Bailey complained to colleagues about Garden Chambers becoming a Stonewall Diversity Champion, saying that Stonewall was complicit in a campaign of intimidation of those who questioned gender self-identity. The tribunal found that Garden Court had discriminated against Ms Bailey and she was awarded £22,000 compensation for injury to feelings, plus interest.

Fahmy v Arts Council England (2023)

Denise Fahmy attended an internal teams meeting where hostile comments were made about people who hold gender critical beliefs. This was in the context of a discussion about the award and removal of a grant to LGB Alliance. A petition was later circulated in which further hostile and intimidating comments were made, leading Ms Fahmy to raise a Dignity at Work complaint, which was not upheld. Leeds Employment Tribunal found in favour of Ms Fahmy, concluding that she had been harassed for her gender-critical beliefs, and shortly afterwards, the parties reached settlement for an undisclosed sum.

Phoenix v Open University (2024)

Joanna Phoenix, a professor, co-signed a letter to the Sunday Times in 2019 in which she made her gender critical beliefs known. She, with others, then established the Gender Critical Research Network, an academic research group promoting research into sex and gender from a gender critical perspective. As a result, she was harassed and discriminated against by colleagues, including in one instance the Deputy Head of Department likening her to “the racist uncle at the Christmas dinner table“. The employment tribunal found that her complaints of direct discrimination and harassment were well-founded and that she had been constructively unfairly (and wrongfully) dismissed. Shortly afterwards the parties reached settlement for an undisclosed sum.

Adams v Edinburgh Rape Crisis Centre (2024)

Roz Adams worked as a counsellor at Edinburgh Rape Crisis Centre. Ms Adams held gender critical beliefs and believed that victims of male sexual violence should be able to choose whether to engage with male or female counsellors. In 2021, the centre appointed a trans woman to the post of CEO. Ms Adams warned that giving ambiguous answers to victims who wanted to know the sex of their counsellor could mislead them or lead them to self-exclude from the service. The issue escalated when a colleague announced they were non-binary and changed their name to one that sounded male. Ms Adams asked her manager for clarity on how she should respond if service users asked if the colleague was male, which along with her observations about language used regarding gender critical people (including ‘terf’, bigot and fascist’) led to a deeply flawed disciplinary process against Ms Adams. She resigned, alleging constructive dismissal and discrimination. Delivering a scathing judgment, the tribunal concluded that Ms Adams had been discriminated against and constructively dismissed due to her gender-critical beliefs. Ms Adams was awarded compensation of £68,990 and Edinburgh Rape Crisis Centre was ordered to publish a statement apologising.

Meade v Westminster City Counsel and Social Work England (2024)

Rachel Meade, a social worker, posted on a Facebook profile (that was set to private with approximately 40 friends) expressing her gender critical beliefs. One of Ms Meade’s colleagues complained to the regulator about these posts, alleging that they were transphobic and that Ms Meade had deliberately shared posts containing misinformation about the trans community. Following an investigation into the complaint, Ms Meade was told that there was a reasonable prospect that her Fitness to Practise would be found currently impaired because of her ‘discriminatory activity’ on Facebook. She was told that she could either accept the report and a sanction of a one-year warning or have her case referred to a hearing. She chose the former. Ms Meade’s immediate managers confirmed they had no concerns about her practice but she was subsequently suspended on charges of gross misconduct and ultimately issued with a final written warning. The tribunal found that Ms Meade had been harassed on account of her gender critical beliefs, awarding her over £58,000, including aggravated and exemplary damages, reflecting the extent of the wrongs committed by the Respondents.

Frances v Department of Culture, Media and Sport and the Department of Science, Innovation and Technology (2025)

Ms Frances brought claims of constructive dismissal on the basis of her gender-critical belief and also on a separate philosophical belief in the integrity of the civil service. The claims were settled early, but this case was highly unusual in that there was no confidentiality around the settlement, including its high value (£116,000). It also resulted in public statements from two Whitehall permanent secretaries, committing their respective departments to significant redrawing of policies around sex and gender. This case helped to buck the previous trend of litigating gender critical belief cases until the bitter end, following settlement in the cases of Esses v The Metanoia Institute and the UK Council of Psychotherapy and Favaro v City, University of London.

Higgs v Farmor’s School (2025)

Kristie Higgs, pastoral administrator and work experience manager at a school, was dismissed for posts she made on her Facebook profile opposing the view that ‘gender is fluid and not binary’, contending that same-sex marriage cannot be equated with traditional marriage between a man and a woman. A complaint was made by a parent, leading to MS Higgs’ suspension and eventual dismissal. Ms Higgs claimed direct discrimination and harassment. While her claims were initially dismissed on the basis that it was the manner of expression that had caused her dismissal, not her beliefs themselves, the Employment Appeal Tribunal granted her appeal and remitted the case back to the tribunal. Ms Higgs appealed to the Court of Appeal, which ultimately ruled that Ms Higgs’ dismissal constituted unlawful discrimination on the grounds of religion or belief, emphasising that dismissing an employee merely for expressing a protected belief is unlawful unless the manner of expression is objectionable and the dismissal is a proportionate response.

What should employers be doing in light of these decisions?

It is clear that employers that conduct or condone discrimination against workers with gender critical beliefs are likely to find themselves on the wrong end of an employment tribunal judgment. While this precedent is well established, the recent decision in For Women Scotland has once again brought to the fore the issue of competing protections under the Equality Act 2010. While there is a surfeit of misinformation circulating online that the Supreme Court has ‘removed’ or ‘weakened’ the rights of transgender individuals in favour of those who hold gender critical beliefs, this is incorrect. The law today is the same as it was before last week’s decision and discrimination against trans people for reasons relating to gender reassignment remains unlawful, as does discrimination against those holding gender critical beliefs. However, because of the misrepresentation of the law on this highly emotive topic, many organisations are confused and fearful. Nevertheless, businesses must take a step back from the online noise and focus on a common-sense approach that treats everyone with dignity and respect.

Employers ought to remember that inclusion is for everyone and that there is nothing discriminatory in recognising that the protected characteristics of sex and gender reassignment relate to groups that have different needs and vulnerabilities. Employers should avoid making statements that disagree with the Equality Act 2010 or the Supreme Court judgment, or that favours or prioritises particular groups. This may lead to claims of sex-based harassment and discrimination as well as discrimination on the grounds of religion and belief.

It is possible to treat trans people with dignity and respect while also applying the Equality Act 2010 definition of sex, and remaining compliant with it. While it may be tempting to seek to avoid conflict, making all spaces ‘gender neutral’ is likely to garner complaints, as well as being in breach of workplace health and safety legislation. It may also be tempting to take situations on a case-by-case basis, but this is likely to lead to non-compliance with the Equality Act 2010 and could lead to employment tribunal claims by workers who expect to be able to access single sex spaces for reasons of privacy and dignity.

It is recommended that employers review their policies and training to assess and act on the risk that what they currently have is unlawful. Policies not based on the Equality Act 2010’s definition of sex are likely to result in unlawful conduct for which employers may be sued in the employment tribunal. Clear language should always be used and the normal standards of workplace and professional conduct must be applied to everyone equally. Set clear expectations around conduct and do not tolerate offensive behaviour in the workplace, whatever the protected characteristic in question. Businesses may see a rise in grievances relating to this topic and while proper grievance policies should always be followed, employers should not entertain vexatious or unreasonable complaints and may need to consider invoking their disciplinary policy for repeat offenders.

If you would like support and advice on making certain that your policies and handbooks ensure your employees are protected, please contact a member of our Employment team.

Emma Cocker outlines how zero-hours contracts can contribute to sexual harassment in People Management

Posted on: March 18th, 2025 by Natasha Cox

Senior Associate Emma Cocker discusses how the prevalence of zero-hours contracts at McDonald’s may have contributed to widespread sexual harassment, in People Management.

Emma’s article was published in People Management, 18 March 2025.

McDonald’s is in expansion mode, with ambitious plans for 200 new restaurants to add to its existing UK network of 1,450 outlets. However, this growth is somewhat overshadowed by persistent allegations of abuse and harassment from those working under the golden arches.

Following allegations by more than 100 current and former staff, a July 2023 BBC investigation into McDonald’s described working conditions as “a toxic culture of sexual assault, harassment, racism and bullying”. According to the BBC, workers as young as 17 had been abused, bullied, groped and harassed. 

The investigation came off the back of McDonald’s signing an agreement with the Equality and Human Rights Commission (EHRC) in February 2023 in which it pledged to protect its staff from sexual harassment. The agreement was reached following concerns about how sexual harassment complaints made by McDonald’s staff were handled. McDonald’s accepted that it had “fallen short” and “deeply apologised”, confirming that every employee deserves to work in a safe, respectful and inclusive workplace. 

However, the problem persists. Appearing before MPs sitting on the business and trade select committee in January 2025, Alistair Macrow, CEO for McDonald’s UK and Ireland, told the committee that 29 people had been dismissed over the past 12 months as a result of sexual harassment allegations. Macrow was asked by the committee chair, Liam Byrne MP, whether McDonald’s had “basically now become a predator’s paradise”. Macrow said the allegations made by the BBC were “abhorrent, unacceptable and there is no place for them in McDonald’s”. He added that the company was determined there should be “no hiding place for bad actors”.

Despite Macrow’s pledges that appropriate action would be taken, the situation does not appear to have improved. Some 300 incidents have been reported to the EHRC, while 700-plus current and former employees are taking legal action against McDonald’s in which they accuse the firm of failing to protect them.

Employers’ responsibilities towards their staff are clearly outlined in the Equality Act 2010, which specifies that they have a statutory duty to protect all employees from discrimination and harassment, regardless of whether they are full time, part time or employed on a zero-hours basis. 

It is widely recognised that zero-hours workers are particularly vulnerable to experiencing discrimination and harassment. Workers engaged in this way face employment insecurity and often fear negative consequences if they complain about working conditions. The BBC states that, as of January 2025, almost 90 per cent of McDonald’s 170,000 UK workforce were on zero-hours contracts. This, along with a predominantly franchise model where local McDonald’s managers are usually responsible for staff recruitment, is likely to be a contributing factor to the present circumstances. 

Without a fixed hours guarantee and the right to reasonable notice of shift changes, vulnerable employees can be easily pressurised into complying with employer demands or find themselves facing financial losses they may not be able to bear.

Last October, the government introduced the employment rights bill, which is designed to bring ‘exploitative’ zero-hours contracts to an end. The draft bill includes a right to guaranteed hours, a right to reasonable notice of shifts and a right to payment for shifts cancelled or curtailed at short notice. It is hoped that these changes will go some way to fixing the power imbalance inherent in zero-hours contracts, whereby the employer holds much more power than the employee. 

Failure to provide a safe, harassment-free environment has led to significant adverse publicity for McDonald’s, putting a spotlight on the risks facing businesses that allow such behaviour to persist. At least in the case of McDonald’s, there appears to be a direct correlation between the use of zero-hours contracts and complaints of discrimination and harassment. As such, employers need to understand the consequences of failing to address potential claims of discrimination and harassment, and the relationship these claims have with zero-hours contracts. 

Moving forwards, people will pay close attention to what McDonald’s does in creating a safe working environment for its employees that is free from discrimination and harassment. In the meantime, much needs to be done to reassure the general public that things have changed, and how the company handles an escalating number of claims will also be closely monitored.

If you would like some advice on meeting your employer obligations regarding discrimination and harassment, please contact a member of the Employment team.

Emma Cocker explores the legal action against McDonald’s over harassment allegations, in Personnel Today

Posted on: February 11th, 2025 by Natasha Cox

Senior Associate Emma Cocker discusses the BBC investigation and subsequent legal action against McDonald’s over widespread allegations of harassment and abuse, and argues that it demonstrates how the employment insecurity of zero hour workers can create a toxic work culture, in Personnel Today. 

Emma’s article was published in Personnel Today, 10 February 2025. 

McDonald’s: zero hours culture feeds sexual harassment allegations

Sexual harassment allegations at the fast food giant came to the fore in 2023 and provide an example, argues Emma Cocker, of how insecure employment can contribute to power imbalances that create a toxic workplace culture.

Marking its 50th anniversary in the UK, McDonald’s announced plans last August to open more than 200 new restaurants in the UK and Ireland over the next four years. However, problems in its current national network of 1,450 outlets continue to loom large, with a deluge of allegations of employee harassment and abuse threatening to cloud the company’s agenda.

In July 2023, a BBC investigation into working conditions at McDonald’s lifted the lid on what it described as “a toxic culture of sexual assault, harassment, racism and bullying” following allegations by more than 100 staff at UK retail outlets of the fast food chain. According to the BBC, workers, some of them as young as 17, had experience of being abused, bullied, groped and routinely harassed.

The BBC investigation was promoted by disclosures made by whistleblowers after McDonald’s signed a legally binding agreement with the Equality and Human Rights Commission (EHRC) in February 2023 in which it pledged to protect its staff from sexual harassment.

The EHRC agreement had itself been reached in response to concerns about the handling of sexual harassment complaints made by staff in its UK restaurants. McDonald’s confirmed that it had “fallen short” and it “deeply apologised”, adding that all employees deserved to work in a safe, respectful and inclusive workplace.

Last month, Alistair Macrow, CEO for McDonald’s UK & Ireland, appeared before MPs sitting on the Business and Trade Select Committee. He told them that 29 people had been dismissed over the past year following allegations of sexual harassment.

Liam Byrne MP, the chair of the Business and Trade Select Committee, asked Macrow if McDonald’s had “basically now become a predator’s paradise”. Macrow said the allegations raised by the BBC were “abhorrent, they are unacceptable and there is no place for them in McDonald’s”, and the company was determined to create a culture where there was “no hiding place for bad actors”.

Despite repeated pledges from Macrow that the firm was taking appropriate action to improve working conditions and clean up behaviour, the situation does not appear to have improved. Since its original investigation into the company was delivered, the EHRC has received 300 reports of harassment, while more than 700 current or former employees are taking legal action and accusing McDonald’s of failing to protect them.

The law in relation to employers’ responsibilities is unambiguous. Under the Equality Act 2010, employers have a statutory duty to  protect all staff from discrimination and harassment, regardless of whether they are employees or workers, and regardless of whether they are engaged on a full-time, part-time or casual basis. 

According to the BBC, 89% of McDonald’s 170,000 UK workers were on zero-hours contracts in January 2025, despite the firm’s 2017 announcement that workers would be offered the choice of a flexible or fixed contract offering minimum guaranteed hours. The minimum hours contracts were for a minimum of 30 hours, 16 hours or four hours a week, but most workers opted for flexibility.

Insecure employment

Like many zero-hours workers, McDonald’s staff face employment insecurity, which invariably leaves them reluctant to raise complaints because of fears they will become subject to detrimental treatment as a consequence. It therefore follows that the true extent of discrimination and harassment suffered by McDonald’s staff may be much higher than current figures suggest.

Zero-hours contracts, by their very nature, result in a power imbalance in which an employer holds significantly greater power than the individual. Without any guarantee as to the number or timetable of working hours, staff have little control over their income or schedule, putting them in a vulnerable position whereby they can be easily pressurised into complying with an employer’s demands, or face not being offered hours in future.

The abuse that arises from the inherent power imbalance that exists in zero-hours workplace relationships can lead to significant liabilities for businesses. Employers therefore need to be acutely aware of potential discrimination and harassment in the workplace and what may happen if they fail to address these issues. The ongoing issues at McDonald’s and the company’s abject failure to provide a safe, harassment-free environment have generated a raft of bad publicity which will ultimately affect profits. 

The UK government’s Employment Rights Bill aims to ensure that ‘exploitative’ zero-hours contracts will end. The bill includes measures which are designed to provide workers with greater security and predictability: a right to guaranteed hours, where the number of hours offered reflects that hours worked by the workers during a reference period (which is anticipated to be 12 weeks) along with a right to reasonable notice of shifts, and a right to payment for shifts cancelled or curtailed at short notice.

While these changes will not directly reduce instances of discrimination and harassment, they may help to eradicate the fears and insecurity faced by zero-hours workers. In the meantime, it is clear that McDonald’s still has a long way to go in providing a safe working environment that is free from discrimination and harassment – and in changing public perception that this is indeed the case. How the company handles the growing number of claims made against it will be carefully scrutinised.

If you would like some advice on meeting your employer obligations regarding discrimination and harassment, please contact a member of the Employment team.

 

Emma Cocker comments on managing discrimination and harassment in the workplace

Posted on: January 9th, 2025 by Natasha Cox

Senior Associate Emma Cocker comments on the legal action facing McDonald’s over allegations of widespread harassment and discrimination, and discusses employers’ obligations to protect their staff and workplace.

Emma’s comments were published in Business Matters Magazine, 7 January 2025, and can be found here.

“All employers have duties to protect their staff against discrimination and harassment in the workplace – obligations which apply regardless of whether people are engaged on a full-time, part-time or zero hours basis.

“However, with most McDonald’s workers being engaged on a zero hours basis, individuals will be acutely aware of their employment insecurity. They are also likely fearful of being subjected to detrimental treatment for raising complaints. The abuse which arises from the imbalance of power inherent in these types of workplace relationships can lead to significant liability for businesses, of which employers must be conscious.

“It would appear that McDonald’s still has a long way to go in providing a safe working environment free from discrimination and harassment. How they handle these claims will likely be carefully scrutinised. The longer businesses allow this kind of behaviour to persist, the longer the list of grievances and legal claims they will face.”

For more information on our Employment services, click here

Government rejects ban on NDAs in sexual harassment cases

Posted on: May 20th, 2024 by Natasha Cox

In March 2024, the Treasury Select Committee delivered its’ report entitled ‘Sexism in the City’. As part of the enquiry, the committee found a ‘shocking’ prevalence of sexism and misogyny towards women working in financial services, and recommended a total ban on the use of non-disclosure agreements (NDAs) and clauses in all harassment cases.

In its response to the Select Committee’s recommendations, the UK government has now pushed back against a move to ban NDAs, saying that they would already ‘most likely’ be unenforceable when reporting a crime to the police. In the Government’s opinion the law therefore does not need to go any further.

As part of the rationale for this decision, the government said, “When it comes to sexual harassment and discrimination, it is important to recognise that individual circumstances vary. The government consultation on ‘Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination’ in 2019 also heard evidence that many employees who sign a settlement agreement at the end of their employment with an organisation value the inclusion of confidentiality clauses, as they allow them to move on and make a clear break.” It added that an NDA would also be unenforceable if it sought to prevent a worker making a protected disclosure about wrongdoing to a prescribed person for whistleblowing purposes.

This move means that employers will be able to continue using NDAs in most common situations where a crime is not involved. It is important to remember, however, that other laws and guidance already exist on how NDAs should be used. These include  best practice guidance from the Equality and Human Rights Commission and Acas guidance for employers, as well as the Solicitors Regulation Authority’s warning notice on NDAs. In addition, all employers regulated by the Financial Conduct Authority must include a clause in any NDA making it clear that it does not prevent a protected disclosure.

Get in touch if you require further guidance on the use of NDAs in relation to allegations of harassment by employees.