Phoenix v The Open University (Case Nos. 3322700/2021 & 3323841/2021)

In brief

Professor Joanna Phoenix won most of her claims against the Open University in the Employment Tribunal at Watford: harassment related to, and direct discrimination because of, her gender-critical beliefs, constructive unfair dismissal, wrongful dismissal and post-employment victimisation were upheld, and some complaints failed. The tribunal held that "The Claimant’s complaint of constructive unfair dismissal is well founded" (Judgment para 6) and that "The Claimant’s claim for post employment victimisation is well founded" (Judgment para 8). Her beliefs, as the tribunal recorded them, met the Grainger criteria and were protected under section 10 of the Equality Act 2010 [486], [559]-[561]. She co-founded the university's Gender Critical Research Network, launched on 16 June 2021 [122], [386]. An open letter signed by 368 staff and postgraduate researchers called for the network's disaffiliation [150], [184]; contributing to, signing and publishing it was held to be harassment [615]-[619]. Upheld (Judgment paras 2, 5-8 and 10): direct discrimination on issues 2(c) and 2(d); harassment on issues 2(a), (e), (g)-(p) and (r), including the university's failure to act on the harassment (issue 2(p)) [669]; constructive unfair dismissal; wrongful dismissal; post-employment victimisation, for ending her grievance investigation because she had brought a tribunal claim [713]; and post-employment harassment on issue 2(k). Not upheld: indirect discrimination (withdrawn, Judgment para 1); issue 2(b) (out of time, Judgment para 3); issues 2(f), (q) and (s) (Judgment para 4); post-employment discrimination under issue 2(s) (Judgment para 9). The failure-to-act finding turns on the reason for the failure: the tribunal asked whether the failure was related to her belief and found that the university's motivation was fear of being seen to support gender-critical beliefs [669]. It did not decide that a failure to protect is harassment in itself, and it held that ending her grievance was not harassment because the decision-maker's reason was not related to her belief [680]. No remedy judgment was given (Judgment para 11).

Key provisions

• para-559 — Protected belief, as the tribunal recorded it : Per [559], the tribunal recorded the claimant's beliefs as being that biological sex is real, important and immutable and is not to be conflated with gender identity, and that there are occasions when biological sex is more important than gender identity, particularly where women are vulnerable to male violence. Applying the five criteria of Grainger plc v Nicholson [2010] ICR 360 set out at [486], it held that "the Claimant’s beliefs fall within the Grainger criteria" [561], so they were protected under section 10 of the Equality Act 2010. Per [560], it treated her pleaded statement that trans people should be able to live with dignity, in safety and free from unlawful discrimination and harassment as an opinion, not part of the belief, because where the two conflicted her belief that sex is immutable would take priority. The university had accepted that most of the belief was protected in light of Forstater [19], [484].
• para-615 — Open letter as harassment (issue 2(g)) : Per [150] and [184], 368 staff members and postgraduate researchers signed an open letter which, as a senior witness broadly agreed, called for the network's disaffiliation because of its members' gender-critical beliefs. Per [615], the university accepted that signing, publishing and contributing to the letter was unwanted conduct. Per [616], the contributors acted for a reason related to the claimant's belief and with the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Per [617], signing by everyone except two named signatories was related to her belief; after a purpose sentence the tribunal found, introduced by Notwithstanding, that "the effect of the signing of the Open Letter was to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant". Per [618]-[619], publication was related to her belief, with purpose inferred and effect found in the alternative. Issue 2(g) was upheld [619].
• para-501 — Proportionality: Higgs (EAT) applied to the open letter : Per [501], the tribunal recited the four Bank Mellat questions and the intervener's factors from Higgs v Farmor's School [2023] ICR 1072 (EAT) at [94], and applied the Higgs factors to the open letter [599]. It found the claims of harm from the network's existence not evidence-based, gave more weight to offence caused by the Savage Minds podcast, accepting that offence can have a psychological effect, and held that the offence did not justify the letter's content, public publication or petition form [605]-[606]. It distinguished Higgs and Page as cases about public-facing roles [607], agreed that "worldwide publication was an unnecessary and disproportionate action" [609], and concluded that the balance lay in favour of the claimant's right to manifest her belief in setting up and associating with the network [614].
• para-575 — Direct discrimination by a head of department (issues 2(c) and 2(d)) : Per [573]-[577], silence and a lack of praise at a departmental meeting when the claimant reported a substantial research grant, while a colleague was praised, was not harassment but was direct discrimination; the comparator was a hypothetical professor at the university "who espoused controversial views which were not gender critical beliefs" [575]. Per [578]-[581], a head of department's instruction not to speak at departmental meetings about her research and her treatment by another university was not harassment but was less favourable treatment because of her belief. Both were in time as a continuing state of affairs [565].
• para-669 — Failure to act on the harassment (issue 2(p)): a reason-why finding : Per [669], the university's failure to respond to the acts of harassment and discrimination under issues 2(a) to 2(o) was unwanted conduct; two senior officers accepted that the Vice-Chancellor's statements did not do enough to protect the network's members, and there was a failure to balance the harm to the claimant and to trans staff and students. The tribunal said: "We considered whether the failure of the Respondent was related to the Claimant’s gender critical beliefs, and we consider that it was." It found that the university's motivation for not acting was fear of being seen to support gender-critical beliefs, and that fear of the pro gender identity section of the university was the reason for the failure. It found no harassing purpose but a harassing effect, relying on the claimant's email of 29 June 2021 and on the university's bullying and harassment policy, which gave her a legitimate expectation that it would act. The complaint did not depend on the grievance-handling allegation, which was not related to belief [670]-[672].
• para-680 — Contrast: ending the grievance was not related to belief (issue 2(s)) : Per [680], the decision to suspend the claimant's grievance was in reality a decision to terminate the investigation; it was unwanted conduct, but the decision-maker's fear of the grievance outcome being overturned by an Employment Tribunal was not related to the claimant's gender-critical beliefs, so it was not harassment. Per [681], it was not direct discrimination either: there were no primary facts from which to infer that a professor without gender-critical beliefs would have been treated more favourably. Per [711]-[717], the same termination was post-employment victimisation, because the decision-maker acted because the claimant had brought tribunal proceedings.
• para-697 — Failure to provide a suitable working environment and constructive dismissal : Per [687], contributing to, signing and publishing the open letter and a research group's statement, and publishing harassing tweets, breached the implied term of trust and confidence. Per [694]-[696], the university failed to provide a suitable working environment by failing to protect the claimant from the harassment between 18 June and 2 December 2021, with the Vice-Chancellor's statement of 10 November 2021 as the last straw. Per [697], the tribunal treated the EAT decision it called Ahmed v Amnesty International [2009] ICR 1450 as concerned only with direct discrimination, and held that "the Claimant’s dismissal was discriminatory by reason of harassment". Issue 2(r) and constructive unfair dismissal were upheld [703], [706].

When relevant

When colleagues campaign, petition or publish open letters against an employee because of a protected belief, and the employer has to decide how to respond [596]-[619], [669]. When an organisation's failure to act on known harassment is said to be harassment itself: on this judgment that turns on the reason for the failure [669], [680], and it should be read with Unite the Union v Nailard, which the judgment does not cite. Also academic, research and professional-network settings [607]-[613]; constructive dismissal after an inadequate institutional response [687]-[706]; and post-employment victimisation where a grievance is ended because the employee has brought a claim [711]-[717]. It governs employees, under sections 13, 26, 27, 39, 40 and 108 of the Equality Act 2010 [19], [684]-[685], [709]. Toolkit analysis: a trans-inclusive belief that meets the Grainger criteria [486] is protected in the same way. The tribunal said it was neutral in the debate and would not make findings on beliefs contradicting the claimant's [556]. The proportionality passages should be read with the Court of Appeal's decision in Higgs [501]. It is not authority on single-sex services or on the meaning of sex in the Equality Act 2010. Decision support, not legal advice.