Managing opposing beliefs: what employers can learn from two recent cases

Most employers would consider themselves very unlucky to become embroiled in a tribunal claim arising from a staff meeting chaired by a senior manager. But that's what happened to the Arts Council who were successfully sued by two members of staff who had opposing (and equally protected) views.

We consider what other employers can learn from Islam-Wright v Arts Council England (1) and Ashcroft (2).

Facts

The Arts Council awarded a grant to the charity, LGB Alliance. However, it decided to suspend it following social media pressure which accused the charity of being ‘transphobic’. 

The Arts Council utilised one of its regular 'drop in' sessions to allow staff to discuss what had happened. It was chaired by a senior manager, and he expressed his personal views that the LGB Alliance was 'divisive' and that giving them a grant was a 'mistake'. A gender-critical member of staff, Ms Fahmy, challenged the manager about his statements and specifically asked how people with gender critical views were protected within the organisation. She went on to bring a successful discrimination claim against the organisation which you can read about here.

The petition

Mrs Islam-Wright didn't attend the drop in session, but she heard about what had been discussed from colleagues. She signed an email petition that had been circulated to all employees by a member of staff which criticised the organisation for funding the LGB Alliance and demanded it deliver trans awareness training to all staff. She added a comment to her signature, expressing sympathy with her trans colleagues and said that she would be ‘terrified’ if members of staff made openly racist statements and asked the organisation what protection would be offered to them. 

The investigation

The Board were very unhappy about the petition and asked a senior HR manager, Mr Ashcroft, to deal with it. The post was removed and Mr Ashcroft reviewed 41 comments that had been added to it. He put them into three groups. Mrs I-W's was one of three comments put in the ‘most serious' pile on the basis that:

• she equated gender-critical beliefs to racism and people that held them to racists
• had created a hostile environment for colleagues with different views; and
• it was possible to identify gender-critical colleagues (such as Ms Fahmy) from her post

Mr Ashcroft asked a colleague to investigate. She invited Mrs I-W to an investigatory meeting. This came as a complete surprise to Mrs I-W and to her line- manager who didn't know anything about it. She asked for more time to prepare for the meeting and said that she didn't feel comfortable being the only ethnically diverse person at the meeting where race was in issue, and asked for this to be addressed. The investigator asked Mr Ashcroft for advice. He told her that staff didn't have the right to ‘pick and choose’ their investigator.

Mrs I-W was signed off sick due to 'stress at work’. She raised a complaint under the organisation's dignity at work policy. She explained why she had made the comment, said she had been acting in good faith and was a witness to the ‘trans cause’. She claimed that her comment was a protected act and the disciplinary investigation against her was an act of victimisation and should be immediately withdrawn. She also claimed that the charges against her were ‘trumped up’ and that the organisation should deal with her complaint before doing anything else.

Mr Ashcroft believed that Mrs I-W was reluctant to engage with the process and he wrote to her to say that it ‘wasn’t acceptable to state preconditions or demands for [her] participation in the process'. He later informed her that ‘wilful hindrance or obstruction’ of the process ‘may be considered as misconduct’.

Mrs I-W remained off sick and contacted a solicitor who wrote to Mr Ashcroft to criticise the way he had treated Mrs I-W and to put him on notice that she intended to bring a claim in the employment tribunal for racial harassment, victimisation and breach of her statutory rights. 

The organisation obtained an OH report which said that Mrs I-W was fit to attend an investigatory meeting which then went ahead. 

The investigatory meeting

Mr Ashcroft attended the meeting alongside the investigator. The investigator asked Mrs I-W a series of questions that had been drafted by Mr Ashcroft but had been tweaked by her. Mrs I-W said that she didn't know the difference between being gender-critical and transphobic. She said she didn't intend to cause offence to anyone and saw the petition as something for allies and supporters. Towards the end of the meeting Mr Ashcroft took over the questioning.

After the hearing Mrs I-W emailed the investigator to repeat that she hadn't intended to cause hurt or upset and hadn't targeted anyone.

Resignation

The investigator emailed her preliminary conclusions to Mr Ashworth who then (for reasons that aren't explained) drafted the actual report. He concluded that Mrs I-W ‘continues to equate gender critical colleagues with racists, homophobes, transphobes and climate change deniers’ - which distorted what she had actually said. He also said that she misunderstood the Equality Act. The report did address (and dismiss) Mrs I-W's complaint that the investigation was motivated by her race, but not her complaints about Mr Ashcroft's involvement.

The report recommended that the employer take disciplinary action against Mrs I-W. She resigned claiming that her position had become untenable because of the way she had been treated by the organisation and Mr Ashcroft. The Arts Council started disciplinary action against her during her notice period and warned her that she might receive an official disciplinary warning.

She claimed constructive dismissal on the basis that her employer had destroyed the implied duty of trust and confidence between them, and had unlawfully victimised her.

Tribunal decision

 She won her constructive dismissal claim, but lost the victimisation one.

Constructive dismissal

The tribunal found that Mr Ashcroft's key focus was to minimise risk to the organisation. That caused him to lose sight of adopting a fair process during the investigation and following the organisation's own policies (which required a manager to decide whether the action in question was sufficiently serious to rule out informal resolution before starting an official investigation). 

The tribunal said it was ‘surprised’ that Mrs I-W's manager hadn't been informed about what had happened or given the chance to discuss it with her. [Surprise in this context roughly translates as ‘what were you thinking??] It found, as a matter of fact, that if this had happened ‘it would have been clear that the claimant’s comment was hasty, ill-informed and ill-thought through but clearly not intended to cause the hurt and upset which it did'.

Sending the investigation invite out of the blue did damage the relationship of trust and confidence, but didn't destroy it. Further damage was done by Mr Ashcroft's terse and dismissive response to Mrs I-W's concerns about her race. He failed to pause to think about whether he should suspend the process to deal with her complaints and quickly concluded that she didn't want to engage. The tribunal said there was no basis for that conclusion. Accusing her of being obstructive and threatening her with disciplinary action was enough in itself to seriously damage their relationship or was the ‘last straw’ that resulted in her resignation.

It also criticised Mr Ashcroft for not realising that he may have a conflict of interest because he was too focussed on pushing through his own agenda.

Victimisation

There was no protected act. The petition had mentioned a group grievance, but none had been submitted and the terms in which it had been mentioned were too general to count. 

Lessons for other employers

The fall-out from the drop in session to discuss the grant to the LGB Alliance has resulted in the Arts Council losing two claims from employees on either side of the gender identity v biological reality divide. 

Ms Fahmy proved that she had been harassed by comments made by Mrs I-W and others because she held and expressed gender-critical beliefs. The Arts Council actually referred to taking disciplinary action against Mrs I-W in an attempt to argue that it had taken all reasonable steps to prevent its staff from harassing Ms Fahmy.

Once it became clear that Ms Fahmy intended to bring a claim against it for discrimination based on her protected beliefs, the organisation (principally via Mr Ashcroft) went into damage limitation mode. It ignored its own policies and ploughed on with the investigation against Mrs I-W when it should have paused and properly considered the issues (including the fact that the conduct she was accused of would not have resulted in her dismissal and should have been discussed with her line manager first). 

Mr Ashcroft should have stepped down from the investigation. He wasn't Mrs I-W's line manager or the investigating officer and his role should have been limited. Instead, he undermined the independence of the investigation by becoming personally embroiled in the process and having a vested interest in the outcome. Given those circumstances, it was always going to be difficult (as in almost impossible) for the Arts Council to defend the fairness of the process or show that its actions hadn't fundamentally damaged the implied duty of trust and confidence between the parties. 

Aside from obvious lessons about the need for investigators to be truly independent, this case demonstrates that employers may come unstuck if they haven't thought through how to approach conflicts arising from differences in the beliefs held by their staff. 

Many organisations still don't realise that their staff have the right to hold, and to express, in reasonable terms, opinions that others may vehemently disagree with and/or which don't align with their values. That doesn't mean they can harass their colleagues by, for example, labelling them as racists, transphobes, bigots, Nazi's etc, describe their views as hateful or encourage other people to wade in to support their side of the argument. 

Employers need sensible policies which make it clear that they don't require staff to agree with each other about everything and where they disagree, they should do so respectfully. That message needs to be demonstrated by leaders and reinforced throughout the organisation. 

The other thing worth repeating is that these types of claims generate a lot of interest. This case was live tweeted by the Tribunal Tweets which exposed the cross examination and legal arguments to a huge audience. 

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