Ms D Fahmy v Arts Council England — 2023

The claimant, Ms D Fahmy, held protected gender critical beliefs. The tribunal found that Simon Mellor's comments during the 14 April 2022 drop-in session, including his views about the LGB Alliance and his follow-up email expressing solidarity with trans and non-binary colleagues, were inappropriate and helped open the way for later conflict, but they did not on their own amount to harassment within section 26 of the Equality Act 2010.

The tribunal upheld the harassment claim on the conduct connected with SB's 11 May 2022 email and petition and the comments posted on it by colleagues. It found that the email and comments went beyond the reasonable expression of opinion, were highly derogatory about gender critical views, and were unwanted conduct related to religion or belief that created an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The respondent was held liable for the employees' acts and did not establish the section 109(4) defence, because it had not taken all reasonable steps to prevent harassment of this kind.

The victimisation claims were dismissed. The tribunal accepted that the claimant's 20 April 2022 letter to Sir Nicholas Serota contained a protected act in relation to her own alleged detriment, but it found no causal link between that act and the delay in removing the petition, which it accepted was left up for about 26 hours because managers were trying to avoid inflaming the staff group involved. The separate allegation arising from removal of the claimant's systems access on 28 March 2023 also failed, because the tribunal found the reason was her media campaign and crowdfunding activity and concerns about policy compliance, not the fact that she had brought tribunal proceedings.

The tribunal said the ACAS Code of Practice on Discipline and Grievance applied for the purposes of section 207A TULR(C)A. It noted that the Dignity at Work outcome letter did not explain any appeal route, unlike the whistleblowing response, and gave an initial indication that any uplift on compensation would likely be around 10%, subject to the later remedy hearing. No final monetary award was made in this judgment, and a further hearing was to be listed to deal with remedy.