The recent Fahmy case (Ms D Fahmy v Arts Council England) in the Employment Tribunal has highlighted the risks for universities of harassment by their employees of their colleagues for their viewpoints.
The Equality Act 2010 prohibits harassment of people with various “protected characteristics” in specified contexts, including employment.
“Religion or belief” is one such characteristic, as we describe in our statement about what sorts of belief are protected following the landmark Forstater case.
Harassment includes engaging in unwanted conduct related to a relevant protected characteristic which has the effect of violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Under Section 109 of the Equality Act, anything done by an employee in the course of their employment must be treated as also being done by their employer – it does not matter whether that thing is done with the employer’s knowledge or approval.
An employer has a defence (the “Section 109(4) Defence”) if it can show that it took all reasonable steps to prevent the employee from doing the alleged act, or anything of that description.
The Fahmy case
Fahmy is one of the most significant recent cases regarding the protection of viewpoints under the Equality Act. While it does not create new law, it shines an important spotlight on the risks for employers of harassment by their employees of colleagues for their viewpoints, and the need for them do everything they reasonably can to prevent this.
Ms Fahmy was a long-standing employee of Arts Council England (ACE). She held and expressed gender-critical viewpoints, in particular in an internal online meeting which was heated on the subject of gender-critical views and transphobia. Hostile comments were made via the chat function at this meeting.
“Extremely offensive” comments were made in connection with a subsequent “petition” (in link from a “support sheet” emailed to all staff). Some of the comments were such that the staff making them were subject to disciplinary proceedings, and one was found to be guilty of harassment of colleagues in breach of ACE’s Dignity at Work policy (the other two resigned before the process was completed).
An internal investigation concluded that it was entirely unacceptable for ACE’s internal email system to be used as it was.
The Tribunal concluded that the comments at the meeting were not of such seriousness as to constitute harassment, but that the staff comments in relation to the petition constituted harassment and that, pursuant to section 109, ACE was liable for that harassment.
The convener of the teams meeting was criticised by the Tribunal for expressing personal views in solidarity with one side of the debate, although it concluded that his actions did not cross the threshold for creating an intimidating etc environment.
The Tribunal also noted that ACE’s Dignity at Work policy misdescribed harassment by excluding reference to harassment relating to a person’s protected belief, which rendered it inconsistent with the Equality Act.
The Fahmy judgment illustrates the kinds of statements likely to be viewed by a tribunal as constituting harassment in the workplace of those with protected viewpoints.
The following were stated as (together) constituting harassment: describing gender-critical views as “bigotry”, a “cancer that needs to be removed”, “should not be tolerated” and “discriminatory, transphobic”, and likening them to racism and sexism – and calling the LBG Alliance (which promotes gender-critical viewpoints and which Ms Fahmy was defending) a “cultural parasite and a glorified hate group that has [….] supporters that also happen to be neo-nazis, homophobes and Islamophobes”.
It is not clear how many of these statements it would have taken in order for the threshold to have been crossed.
It is also worth noting that the comments at the online meeting were quite strongly expressed, but these were held not to constitute harassment. They included the convenor of the meeting stating that the LBG Alliance was, in his personal opinion, “a divisive organisation that has a history of anti anti trans-exclusionary [sic] activity”, and another saying that it was “extremely disappointing to see people trying to defend [the LBG Alliance] here of all places.”
This is a reminder that comments and statements, even strongly expressed ones, which a recipient may find offensive, do not necessarily constitute harassment. The bar for harassment is not low.
Actions by employers in order to avoid liability
To avoid liability for unlawful harassment by their employees of colleagues in respect of their viewpoints, employers must be able to show that they qualify for the Section 109(4) Defence, ie they have taken all reasonable steps to prevent their employees from committing that sort of harassment. This requires an employer to take the following steps.
- Ensure that its staff understand what constitutes harassment, what are protected viewpoints, and that harassment of people with such viewpoints is unacceptable; and that tolerant, personally respectful discourse, including when made through internal communications systems, is expected within the work environment, while making it clear that this does not prevent staff from disagreeing, sometimes strongly, with each other’s ideas.
- Have appropriate policies, practices and requirements to ensure that the above is understood and complied with.
- Conduct appropriate training.
- Actively enforce its policies and requirements.
- Ensure that its internal communications systems are controllable and monitorable; and be ready to actively control and monitor them promptly and effectively.
- Have appropriate systems in place for reporting and management of problems.
- Have appropriately senior, experienced and empowered personnel with responsibly to carry the above into effect.
In order to ensure that they and their employees do not harass their employees for their viewpoints, organisations need to maintain institutional neutrality on matters of polarised public debate, or at least take an approach which is very careful to avoid actions or language which risk counting as harassment, while complying with their general legal obligations. The detailed reasoning is as follows.
If an employer takes sides with one contested position in an area of passionate and polarised debate – and in situations where it is not legally required to do so (for instance, to stop communication which has itself crossed the line into harassment) – it necessarily sets itself against the other position.
This gives rise to a very obvious risk of creating a hostile environment for (i.e. harassing) people who hold the other viewpoint, or creating an environment in which their employees feel free or even encouraged to do so.
The criticism by the Tribunal of the convener of the online meeting in the Fahmy case for expressing personal views in solidarity with one side of the debate is a good example of the problems taking sides causes.
While it appears that he was sincere in attempting to prevent inappropriate behaviour (and he was not himself held to have harassed Ms Fahmy), the Tribunal stated that his taking sides provided “the basis, or opened the door, for the subsequent petition and the comments” which constituted the harassment in the Fahmy case.