Employer over-reacted to gender-critical Facebook posts

Employers must of course protect their trans and non-binary staff from discrimination and harassment in the workplace, in the same way as those with other protected characteristics.

However, there is a limit on how much employers can police the expression of controversial, but protected, beliefs in private spaces, even if these may be visited by some colleagues who are upset by what they read.

Despite being unwelcome news for the employer involved (subject to any appeal) the ruling may help other employers avoid similar mistakes. While each case will be different, here are some useful pointers from this latest decision:-

• Take a careful look at what has been said: judge the meaning objectively
• Examine the context: there will be a greater need to act if the remarks are made in a workplace setting or on a public platform; less so if they are made privately in a personal capacity
• Evaluate the tone used: the more offensive the language, the greater the likelihood that employer action will be justified
• Consider the effect of the posts on the employee’s ability to do their job: disciplinary action is more likely to be justified where there is likely to be an adverse impact

In cases where the employer is concerned about damage to their reputation, what is the evidence that this has happened, or could happen in the future? In short, think carefully before you take any action and don’t over-react. That, of course, is much easier said than done in the pressure of the moment.

You can find more commentary from Mills & Reeve about this latest ruling on the Mills & Reeve website – www.mills-reeve.com