Employment tribunal and court judgements | July 2023

Maya Forstater v CGD Europe UKEAT/0105/20/JOJ

Maya Forstater brought a claim for discrimination on the basis of philosophical belief against her employers, the Centre for Global Development (CGD). Ms Forstater's philosophical belief was gender-critical i.e. she believed that sex is binary and immutable.

In 2021, Ms Forstater's case gained attention when the Employment Appeal Tribunal (EAT) ruled that her gender-critical belief was a protected philosophical belief under the Equality Act 2010. The Employment Tribunal subsequently determined that CGD's decisions to not offer Ms Forstater an employment contract and to not renew her visiting fellowship were acts of less favourable treatment of Ms Forstater because of her protected gender-critical beliefs (direct discrimination).

The EAT also found that the CGD's removal of Ms Forstater's profile was an act of victimisation.

In early 2023 the Tribunal released their judgment on remedies. Ms Forstater has been awarded £106,404.31.

The award

The award to Ms Forstater comprised of:

• £25,000 for injury to feelings
• £2,000 for aggravated damages
• £64,000 for financial losses
• £14,778.47 in interest

Injury to feelings

Ms Forstater was awarded a relatively high award for injury to feelings – at the top of the Vento middle band. This was because the Tribunal concluded that the discriminatory acts, including the removal of Ms Forstater’s profile from the website, were significant and demonstrated publicly that CGD did not want to be associated with Ms Forstater. This “affected the Claimant’s status within the Respondents’ organisation and in the eyes of the wider professional world”.

Aggravated damages – respondent's conduct

Aggravated damages are unusual; they are only available in discrimination cases when a respondent has acted in a "high-handed, malicious, insulting or oppressive manner" which has aggravated a claimant's injury.

They were awarded in this case because of the respondent’s public statements after the EAT’s decision.

Following the EAT decision in 2021 Amanda Glassman, CGD’s vice-president, sent out a press release stating that the decision was disappointing as “we believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people”. A further press release stated that “… while gender-critical beliefs may be protected, actions that harass or discriminate against trans people cannot be undertaken with impunity…”

A letter signed by 85 staff members was also shared with the publication Pink News which included statements such as “We believe CGD must take a consistent stance against all forms of bigotry” and referenced causing harm to trans people. CGD were quoted as being “grateful” for the letter which they “felt was…in the best spirit of CGD’s culture”.

The Tribunal found that it was inflammatory to incorrectly assert that the Judge had found that Ms Forstater’s beliefs cause harm to people or to suggest that the Judge found that Ms Forstater had harassed or discriminated others. The Judge did not characterise Ms Forstater’s words as offensive or causing harm to trans people. The sharing of the letter was criticised as indicating that the Respondent's organisation regarded Ms Forstater’s belief as amounting to “bigotry”.  

What should employers learn from this judgment?

Firstly, be alive to the fact that philosophical beliefs can be protected and that simple statements of those beliefs are also protected. Do not rush to judgement or action where you are concerned about the way in which an employee is manifesting a philosophical belief.

Secondly, if you have a tribunal judgment against you for discrimination, be careful with the statements that you issue afterwards. Inaccurate statements that imply criticism of the claimant by the Judge may mean that the size of any award is increased.

Authors: Manging Associate Charlie Maples and future Foot Anstey Trainee Solicitor, Halo Garrity