P McColl and W Muir Mr K McBride v The Scottish Ministers — 2022

The claimant, an agency worker assigned to Transport Scotland, brought complaints arising from his gender critical/sex realist beliefs and his lack of gender identity belief. The tribunal accepted that his gender critical beliefs were protected beliefs. It considered a series of alleged manifestations, including emails, grievances, complaints and Yammer activity, and found that some but not all had a sufficiently close nexus with the protected belief.

The tribunal dismissed the harassment complaints. It found that the arranging of LGBTI+ and Stonewall awareness events, comments at those events, the distribution of a Trans Language Primer link, responses to the claimant's Yammer post, handling of complaints, termination of assignment, and assistance to Pertemps did not amount to unlawful harassment. In particular, the tribunal found that some matters were not unwanted or not related to belief, and that the statutory purpose or effect was not made out. It also found that earlier allegations would in any event have been out of time if they had been established.

The direct discrimination complaints were also dismissed. The tribunal found that the respondent's treatment would have been the same for a hypothetical comparator whose circumstances were not materially different except for belief. It accepted the respondent's evidence that the claimant's assignment was ended because of the way he had contacted staff directly and persistently, and the impact this had on colleagues, not because of his beliefs or non-belief.

The victimisation complaint was dismissed. The tribunal found that some of the claimant's communications were protected acts, but that none of the alleged detriments was caused or influenced by those protected acts. It concluded that the respondent had taken the claimant's concerns seriously, taken action in relation to the Trans Language Primer issue, and that the later treatment was unrelated to protected acts.