In recent years the phrase ‘wokeness’ was coined. This refers to the ‘state of being aware, especially of social problems such as racism and inequality’. We have also had a radical shift in public opinion about the LGBTQ+ community, and this in turn has highlighted this fact in the place of work and in Employment Law. .
What is seemingly known as the decade of ‘wokeness’, the last few years has seen a flurry of acceptance for the LGBTQ+ community in employment law.
However, in the midst of this new way of thinking, what is acceptable in the workplace is unclear.
In recent times the issue has been most notably raised by by the famous author of the Harry Potter series of books, JK Rowling’s. In 2020 she tweeted to the effect that to the effect that according trans people recognition of their new gender diminishes the experience of those born into that gender, leading to her being branded a transphobe. Was she right to put forward her opinion, or was it dangerous as an individual in a position of power to make such comments?
Fast forward to 2022 and it has been reported that Cathy Boardman, a lecturer at BIMM Institute (a music college), was recently ostracised in her place of work after expressing her views on drag acts.
During a lesson in her cultural studies class, Ms Boardman asked her students to reflect on whether a male dressing as a female is demeaning.
Ms Boardman presented two photos side by side: one of white performers appearing in blackface, and another of a drag queen. Captioned between these two photos was the question, ‘what about woman face? (a term which refers to the impersonation of females); seemingly comparing the two images. This caused upset within the classroom to transgender students.
According to Ms Boardman, she wanted students to think about whether ‘womanface’ should be treated with the same severity and criticism as blackface. In her words, she was simply attempting to draw academic parallels, stimulate discussion and test their skills. She reassured that she was not trying to push any sort of ideology on her students.
She again faced backlash after a lecture on sex and gender. This time, she centred her lesson on the mistreatment of women, considering that the murder of Sarah Everard had just occurred. Students accused her of transphobia for failing to address the issue of violence towards transgender people. When asked why, she said that she had not had enough time to do the topic any justice.
In a separate third incident, Ms Boardman was asked whether she watched a popular American reality TV show (Ru Paul’s Drag Race) and was invited to attend a drag show by her colleagues. However, she declined and said ‘oh god no I don’t want to see a drag show. I hate drag’.
In December 2021, she was summoned by the principal to discuss her ‘trans-exclusionary’ views. Here, she was told that she demonstrated poor academic practice for representing a provocative idea to the students without warning them prior to the lecture.
A few students also filled out an evaluation survey where they criticised her teaching. She was also termed homophobic, despite being part of the LGBTQ+ community herself.
In May 2022, she was invited to a meeting and told that she had been unsuccessful in completing her probationary period as a deputy course leader. She then received a letter telling her that she had failed to achieve the professional standards of her role by her inappropriate expression of views.
Feeling wrongfully dismissed, Ms Boardman is said to be thinking of legal action against her employers on the grounds of discrimination under section 10 of the Equality act 2010. She fears that this dismissal will hinder her chances of further employment in the future.
This is not the first time that an employee has been dismissed after sharing their opinion. Kathleen Stock, a former Philosophy professor at Sussex University, felt pressured to leave her job after expressing a view that people cannot change their sex by changing its biological manifestation. Barrister Allison Bailey was also dismissed after being branded a ‘transphobe’ by her colleagues for upholding similar views to both Kathleen stock and Cathy Boardman.
More shockingly, a teacher in Ireland has been suspended for refusing to refer to a student as ‘they’ during their transitioning period, citing his Christian views as the reason.
This all raises the following question: how applicable is the right of freedom of speech to academics and employees when it comes to topics relating to sexual orientation?
Whilst there is more open-mindedness these days, there seems to be a grey zone in terms of what is right or wrong in expressing. How far can employees express their views with regards to sexuality without causing offence?
The law isn’t much help. It mostly boils down to the definition of gross misconduct, which results in a fair dismissal but for which there is no legal definition. An employment tribunal won’t call talking about non-work-related matters in the workplace gross misconduct. It won’t be able to uphold a dismissal for discussing ‘controversial’ topics as that is too vague. It won’t uphold a dismissal for actions unless a reasonable person would consider them dismissal-worthy. It would certainly help to have a definition in an employer’s policy saying what actions the employer considers dismissal-worthy though.
The other relevant law is the law on harassment in the workplace, which is unwanted conduct (including conversations) that a colleague reasonably finds offensive. This is more likely to amount to gross misconduct but again the devil is in the word ‘reasonable’. Tribunals need to balance a person’s right not to be offended (on grounds of sex, race etc) with another person’s right to freedom of speech and their right (also protected under employment law) to philosophical opinions. A carefully-reasoned and carefully-expressed view such as JK Rowlings might well benefit from this protection, meaning that she could not be dismissed for gross misconduct, even if the result is an intolerance of the philosophy behind a trans person’s moral right to transition.
Some employers are in fear of facing legal action and scandal by their workers and consumers resulting from views expressed by their staff. From the cases mentioned above, it’s clear that employers need to explain what are and are not acceptable topics of discussion in the workplace. Ultimately, only stifling conversation using the threat of disciplinary action can lower the chances of former employees bringing claims of unfair dismissal.
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