Category: Freedom of Speech

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Beliefs Case Law Diversity Employment Law Employment Tribunal Equality Act 2010 Freedom of Speech Lousha Reynolds

Balancing Beliefs: Why the EAT Lister v New College Swindon judgement matters

Royal Courts of Justice, London

The UK employment law community is awaiting a pivotal decision from the Employment Appeal Tribunal (EAT): the judgement in Lister v New College Swindon.

Following a preliminary hearing in May 2025, this appeal is one of the most significant belief discrimination cases of the year. For employers, particularly those in the education and public sectors, the outcome will define the practical boundaries between an employee’s right to hold gender-critical beliefs and an employer’s duty to protect service users from harassment.

The Background: Where we left off

The original Employment Tribunal (ET) decision in March 2024 was a comprehensive victory for the employer. Kevin Lister, a maths lecturer, was dismissed for gross misconduct after refusing to use the preferred name and pronouns of a transitioning student (“Student A”).

The ET found that while Mr Lister’s gender-critical beliefs were protected under the Equality Act 2010 (following the precedent in Forstater), his manifestation of those beliefs was “objectionable.” Key factors included:

  • The power imbalance: Mr Lister was a teacher in a position of authority over a minor. 
  • The gender-neutral approach: Rather than using the student’s name, he gestured toward them, which the student found demeaning. 
  • Refusal to comply: During the disciplinary process, he maintained he would not change his behaviour, leaving the college with little choice but to dismiss him to prevent ongoing harm.

Why the appeal is critical

The EAT is now considering whether the first tribunal correctly applied the “boundary” between holding a belief and manifesting it. Mr Lister’s appeal argues that:

  1. The college’s gender reassignment policy was inherently discriminatory by requiring him to act against his conscience.
  2. The tribunal failed to properly balance his Article 9 (Freedom of Thought) and Article 10 (Freedom of Expression) rights under the European Convention on Human Rights.

For legal practitioners, the central question is whether an employer can mandate the use of preferred pronouns in a workplace or educational setting without it amounting to “compelled speech” or indirect discrimination.

What employers should watch for

This judgement will likely provide much-needed clarity on the “proportionality” test. We expect the EAT to address:

Key Issue Employer Consideration 
Manifestation vs. Belief At what point does expressing a belief become “manifestly objectionable” conduct? 
Policy Enforcement Can an employer fairly dismiss an employee solely for refusing to follow a “preferred pronoun” policy? 
Safeguarding Does the duty of care toward students/vulnerable groups trump an employee’s right to manifest their beliefs? 

Practical steps for HR and management

While we await the final word from the EAT, businesses should not remain static. We recommend:

  • Reviewing equality policies: Ensure your policies on gender reassignment and religion/belief are balanced. They should emphasise respect and dignity for all without appearing to indoctrinate or silence protected beliefs.
  • Training on clashing rights: Managers need to understand that two people can have competing protected characteristics. The goal is to manage the impact of the behaviour, not the belief itself.
  • Focus on proportionality: If an employee refuses to comply with a policy, consider whether a less severe sanction than dismissal is possible, unless, as in Lister’s case, the employee makes it clear they will never change their conduct.

Looking ahead

The Lister appeal arrives at a time of heightened sensitivity, following the Government’s long-awaited (and still debated) guidance on gender questioning children in schools. The EAT’s decision will serve as a lighthouse for how these complex, often emotive issues are handled in the tribunal system for years to come.

Do your current Equality and Diversity policies align with the latest EAT guidance?

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Lousha Reynolds
Refreshing Law

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Equality Act 2010 Freedom of Speech

Freedom of speech – A minefield for employers

View of the City of London at sunset

You may have seen that David Miller has been successful in establishing that his anti-Zionist beliefs qualify as a philosophical belief and are therefore protected under Section 10 of the Equality Act 2010. This is the latest in a series of cases, such as the Maya Forstater case and the Alison Bailey case showing that the law will potentially protect the right to hold beliefs that are perhaps less fashionable or out of step with others, just as much as it protects more mainstream views.

We’ve known since the Grainger case some years ago that for a belief to be protected, it has to be something that is worthy of respect in a democratic society but essentially the Courts are taking a really wide view of that and it seems that only the most extreme beliefs would be excluded: Naziism is the example that is always given.

This leaves us in a position where if you state your beliefs, for example, in meetings, in the workplace, on social media and others are offended, and the employer wades in on the “side” of others, they risk committing direct discrimination against the person holding that belief. Examples in recent years have included the Page case where they were talking about same sex marriage, Forstater where it involved views on biological sex being immutable (unable to change) and in the David Miller case, the belief that Zionism is problematic for a number of reasons. Therefore, if your belief system is racist or homophobic or anti-islamist, this protects your right to hold that belief and express it. Essentially, the law protects the individual’s right to express their opinions and articulate their beliefs provided that the individual is manifesting their beliefs in a way that is not objectionable, they will be protected by the law of direct discrimination. In contrast to those who step over a line and express their beliefs in an objectionable manner.

This leaves employers having to regulate between groups of staff with opposing views. Up until now, employers have taken a “dampening” approach asking colleagues whose views might cause friction with others to perhaps be quiet about it. The “ we respect your views and you are entitled to have them but given it is causing an issue please can you not go on about it” approach.

That is problematic – the law has imported from European Law and Human Rights Law the concept of proportionality – an employer having a quiet word with colleagues asking them to be mindful perhaps of policies as others have contrary views is going to be proportionate. Wading in and disciplining or excluding a member of staff from certain activities is likely to fall into the disproportionate category.

The traditional approach of having a ‘zero tolerance’ approach in Equality and Diversity Policies to any kind of bullying or harassment gets unstuck; it doesn’t work when we are juggling different beliefs and can lead the employer into direct discrimination territory when penalising someone who has caused offence.

It is still legitimate for a company to set out what its values are and expect staff to behave in a manner which fits in those values. However if the employee is doing their job but causing offence to others when they express their beliefs, real caution needs to be taken.

I recommend that you make it clear in any policies that you do have that in the workplace you may have to listen to views that you find offensive, and others are entitled to express their beliefs, even where those beliefs clash with yours, to make it clear that the employer is having to moderate and balance a range of opinions.

Where an issue emerges, seek advice before taking any steps you might want to and try the test of ‘if this person was expressing a view about [slavery/children being sent down mines being a negative thing] – insert a benign belief here, would we be taking this step’? That is likely to take the emotional heat out of it.

If the employee’s conduct is becoming problematic, can we strip out what the conduct is that is an issue and separate it from the belief? eg:- they are expressing their views to customers and upsetting them, we’ve had complaints.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Anonymity Confidentiality Data Protection Act 2018 Data Use and Access Act 2025 Employment Law Employment Rights Act 1996 Freedom of Speech Investigations Privacy

Monitoring exchanges in WhatsApp

WhatsApp icon on a phone screen

Your average employee and their manager are merrily commenting to each other and their colleagues using apps such as WhatsApp, because such applications are an easy way to communicate, saving  time compared to picking up the phone to each other, interrupting each other or sending a more formal email. However, to your average employment lawyer and HR professional, it can feel like the lid coming off Pandora’s box.

You are probably all aware of recent examples of harassment where employers have got into trouble because of the content of messages on Apps (Met Police being an example that hit the news). Today I was reading about an example in ‘People Management’ where a misogynistic older male had sent a female colleague nearly 200 messages that were wholly inappropriate for the workplace including memes, jokes that the sender probably would put down as “banter” and so on. In that particular case, the employee was awarded £19,000. It is for good reason that we are all triggered with concerns as we are asked to delve into this area but that is not the focus of this thought piece. I wanted to focus on the extent to which the employer is able to access WhatsApp messages, for example, if they are stored on a company device.

This largely depends on what you have set down in writing to the employee. An employee will have a reasonable expectation of privacy in their working life, which will include their office space which also now includes their “device space”. So, if the employee is having a chat with their friend, for example, or their partner, they are likely to have a legitimate expectation that that conversation is private in just the same way as in the Halford case years ago, where the employer got into trouble for listening to a conversation with a trade union representative on the telephone. This is why we have to draw to an employee’s attention, what monitoring takes place and you will find statements in policies and in contracts managing that employee’s expectation, so setting out when, for example, a manager is likely to be reviewing the content of their laptop or their device, such as if they go on holiday or if they are off sick. Just because a non-work related matter is being stored on a work laptop or a work phone or iPad, doesn’t mean it loses the quality of privacy in the sense of management of expectations.

You could go further these days and spell out that if employees use things like Facebook or WhatsApp on work equipment, that they should not have any expectation of that communication remaining private. For example, if a manager does have to access the device or after the employee leaves, if they have left those applications open and we then discover something, we are able to use that evidence…

Having said all that, my experience of the Employment Tribunal system is that they do have discretion over admissibility of evidence. Whilst you may have technical legal arguments as to why something has been obtained in an inadmissible way, the Tribunals as opposed to the Courts in the UK, tend to be much more relaxed and are just interested to see the content of the messages and rule on how they affect the legal questions before it. From an employee perspective, it can be deeply frustrating to feel violated in terms of your privacy rights and then find that arguments along those lines don’t get you terribly far and the Tribunal’s focus remains on the substantive claims you are bringing.

I have also recently seen the first examples of emojis causing significant offence and a harassment and victimisation claim but in this particular instance it was the crying with laugher emoji that was the issue. This illustrated that the combination of the emoji with the words used alongside it turn what might be relatively innocuous into the recipient being able to argue that it was offensive. Make sure you have updated your policies to include offence being caused by emojis…

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Bullying and Harassment Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010 Freedom of Speech Gender Inclusivity Video

Video | Employment Tribunal on gender-critical beliefs

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing in detail the recent Employment Tribunal case involving Maya Forstater which centred around gender-critical beliefs and whether she was unfairly discriminated against.

Anna Denton-Jones
Refreshing Law