ACE loses second ‘gender beliefs’ tribunal case

An Arts Council England (ACE) employee who resigned during an investigation into comments she made supporting trans rights was unfairly dismissed, a judge has ruled.

An employment tribunal held in Manchester heard that an investigation was launched in relation to comments on a petition circulated among ACE staff in May 2022 that highlighted concerns about funding provided to the LGB Alliance.

The petition, which also called for internal gender awareness training and “fair treatment to all staff”, has previously been the focus of a separate employment tribunal, with Denise Fahmy successfully claiming she was harassed by fellow staff over her gender critical beliefs.

The tribunal heard that Afreena Islam-Wright added comments to the petition after hearing second-hand from colleagues what had happened at a drop-in session attended by ACE deputy chief executive Simon Mellor on 14 April 2022.

During that meeting the issue of funding provided to the LGB Alliance was discussed, with a number of participants expressing the view that the organisation was “transphobic”.

“If I came to work one day, and attended a drop-in session where staff members were openly making racist statements, and asking [ACE] what protection would be offered to them as race critical staff members – I would feel terrified,” Islam-Wright said in the her comments on the petition.

“I can’t imagine what my trans and [non-binary] colleagues are feeling right now. I’m very concerned that gender critical staff members make funding decisions, and believe it is of the utmost importance that trans awareness training is delivered and also training about our public sector equality duty – it shouldn’t be taken as given that everyone comes to work with no discriminatory views.

“We can’t necessarily ‘train’ people out of being transphobic, but we can make it clear that we don’t tolerate transphobia – by not tolerating it.”

Following a complaint by Fahmy – who spoke in defence of LGB Alliance at the April 2022 meeting – ACE’s HR department launched an internal investigation into some of the comments posted on the petition.

‘Hostile environment’

An initial review identified nine comments as warranting further action, ranked in seriousness from “A” (the most serious) to “C” (the least serious).

Islam-Wright’s comments were one of three categorised as the most serious on the basis that they equated gender critical beliefs to racism and created a “hostile environment for colleagues with different views”.

It was also said that gender critical colleagues could be identified, and the comments undermined colleagues involvement in funding decisions.

On 7 June 2022, the HR department emailed Islam-Wright inviting her to attend a disciplinary investigation meeting on 14 June 2022 – the first time she was made aware of any possible disciplinary action.

Islam-Wright responded the same day requesting more time, pointing out that her working pattern meant she only had two working days to prepare and explaining that this was her first ever disciplinary and that she felt “anxious and frightened”. The meeting was rescheduled for 22 June.

On 13 June Islam-Wright submitted a fit note confirming she was “not fit to work because of stress” and began a period of sickness absence.

Four days later she raised a complaint under ACE’s Dignity at Work policy, explaining in an email that her comment merely sought to explain how she would feel if discriminatory statements were made about her protected characteristic, which she identified as “race and/or colour”, so that she could show empathy with how trans colleagues felt.

‘Act of victimisation’

She went on to say that being subjected to a disciplinary investigation was “an act of victimisation because of her support for trans colleagues”, and asked for the disciplinary investigation to be withdrawn.

The investigation eventually went ahead on 9 August 2022. During the meeting Islam-Wright said that it was never her intention to vilify anyone, pick on anyone, or cause anyone any upset.

“When it was put to her that labelling colleagues in a public forum as transphobic could be constituted as bullying and harassment, the claimant said her sole intention was to support her trans [and] non-binary colleagues,” Employment Judge Rhodri McDonald, presiding over the hearing, said.

“She repeated on a number of occasions that it was never her intention to hurt anybody.”

On 30 August Islam-Wright was emailed to advise her that the investigation had been completed and that she would be invited to attend a disciplinary hearing.

But on 12 September she resigned, saying her position had become untenable, adding that the report was biased against her and “sought to destroy her credibility”. Her last day of employment was on 22 September 2022.

“We accept that [ACE] had grounds for viewing the claimant’s comment as a matter for concern, given the impact it and other comments had had on [two members of staff who submitted impact statements],” Judge McDonald said.

“There were also more broad concerns about the impact of the fallout from the drop-in session on employment relations within [ACE].

“The usual first step [under ACE’s disciplinary policy] was to decide whether the action amounted to sufficiently serious misconduct to mean that informal resolution through discussion with a line manager was inappropriate.

“Only in instances of serious or gross misconduct was the first step to implement the formal process. In the claimant’s case, the first respondent bypassed the claimant’s line manager completely in deciding to proceed straight to an investigating meeting.

“We do not in any way minimise the genuine upset caused by the claimant’s comment to some of her colleagues. However, it seems clear to us that [ACE] never viewed the claimant’s actions as amounting to sufficiently serious misconduct to bring the possibility of dismissal into play.

“We are surprised that the first step was not for [her manager] to sit down with the claimant and talk through her comment and its impact.

“Had that happened we find that 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.”

‘Terse and dismissive’

Judge McDonald also said there was “no good reason” for the “terse and dismissive way” the email from HR on 7 June “dealt with the genuine anxieties raised” by Islam-Wright.

He also highlighted inconsistency in the investigation finding on the one hand the claimant did not know what she was doing because of her lack of understanding of gender critical views as being a protected characteristic, and at the same time saying that she was guilty of harassment.

“While we accept that the definition of harassment includes conduct with a harassing effect as well as conduct with a harassing purpose, it seems to us that when an employer is deciding whether an employee is guilty of misconduct, the extent to which they intended to harass is clearly relevant,” Judge McDonald said.

“We also find that the report seemed keen to minimise the extent to which the claimant showed remorse for what she had done.

“Her apology was deemed as ‘not really an apology’ when there does not seem to be any real grounds for doubting the sincerity of it.”

He added that there were “inconsistencies” between the conclusions of the investigation report and what the claimant actually said at that investigation meeting

“Some of her comments appear to us to have been taken out of context or distorted to justify action being taken,” he said.

“The claimant was constructively dismissed and that dismissal was unfair,” Judge McDonald said.

A complaint of victimisation was dismissed.