An employee has won a harassment case against her employer, Arts Council England (ACE), which was found to have created a “hostile environment” after she expressed her gender critical beliefs.
Denise Fahmy brought the claim at Leeds employment tribunal after “extremely offensive comments” were made about gender critical beliefs and a petition was circulated within the organisation that likened such views to a “cancer”.
In a meeting, ACE’s deputy chief executive Simon Mellor criticised the London Community Foundation’s (LCF) decision to award the LGB Alliance a grant as it has “a history anti-trans activity”.
At the meeting, Fahmy defended the LGB Alliance, citing that the charity was “not anti-trans”.
The tribunal ruled that an email and comments shared by other staff following the meeting “were unwanted conduct which had the purpose and effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant”.
It stated that Fahmy’s gender critical beliefs were protected as a philosophical belief under the Equality Act 2010.
Claimant defended LGB Alliance
In April 2022, Fahmy joined an online meeting of more than 400 staff where LCF’s decision to award a grant to the LGB Alliance was discussed. LCF suspended the grant after backlash to the decision.
During the meeting, Mellor voiced his views that the LGB Alliance “has a history of anti-trans activity” and that it was a mistake for LCF to award the grant to the charity.
The claimant, Fahmy, defended the LGB Alliance, citing that it was “not anti-trans” and asked how gender critical views are protected at ACE.
In an email to the deputy CEO after the meeting, Fahmy wrote: “The meeting left me profoundly disturbed that you confirmed our arts funding can now be closely tied to the personal opinions of funders – that cannot be right. I will be raising a formal complaint in the next few days.”
Petition
A month after the meeting, an employee sent a petition to all staff called an “allies support sheet” which referred to “openly discriminatory transphobic staff”.
The tribunal ruled that the petition included some “extremely offensive comments referring to anti-trans (gender critical language)”.
ACE’s former employee who sent the petition, identified as SB, was suspended the same day for misconduct.
The charity's letter of suspension cited that SB “rejected the right of colleagues to hold a belief or beliefs (which are contrary to your own) in violation of their rights under the Equality Act”.
However, the petition remained online for 26 hours before it was taken down. The tribunal ruled that it should have been taken down sooner.
A comment from one employee on the petition, identified as PH, said: “It is clear that there are members of our own organisation who are happy to be vocally anti-trans and ‘gender critical’. We shouldn’t have to put up with this any more than we would racist or sexist behaviour.”
The same employee then added: “Much like how our recent antiracism training has illustrated there is an ongoing problem with racism in our ranks that needs to be challenged, this cancer needs to be removed from our organisation.”
Actions created ‘hostile and offensive environment’ for the claimant
The judgment states: “The tribunal is satisfied that the email and comments were unwanted conduct which had the purpose and effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.
“The claimant was deeply upset and there was an intimidating hostile, degrading, humiliating or offensive environment created for her. The actions did have the purpose of creating that effect.”
The tribunal ruled that “the claim of harassment related to the protected characteristic of religion or belief is well-founded and succeeds”.
Fahmy: ‘It cannot be acceptable that people with my beliefs are subjected to harassment at work’
Fahmy said: “I am delighted to have won my claim of harassment. It cannot be acceptable that people like me, who believe people can’t change their sex, are subjected to harassment at work. And worse still, that employers encourage and collude in this behaviour.
“People in the arts, and especially women, are facing a tide of bullying with spurious accusations of transphobia, and many are frightened to speak out as they risk public cancellation.
“Institutions like the Arts Council need to be held accountable, when they are biased and enable harassment of gender critical people.”
ACE response
An ACE spokesperson said the charity was pleased Fahmy’s two claims of victimisation were dismissed and “that there was nothing in the judgment to support the accusation of institutional bias”.
They said: “We are reflecting on the judgment which upheld two allegations of harassment in relation to a petition set up by a junior member of staff who no longer works for us, and we note the tribunal’s acknowledgement of steps taken by us to disable the petition and address the incident at the time.”
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