“Offensive and abhorrent beliefs” not a ground to deny renewal of employment contract : UK Employment Appellate Tribunal

Maya Forstater v. Centre for Global Development attracted my attention when JK Rowling retweeted Forstater’s cause, which sparked a global outage against the famous Harry Potter author and others, who held similar beliefs.

Maya Forstater was an employee of a think-tank research centre in London. She used her twitter handle to spread transphobic beliefs, that biological sex is real, binary, important and immutable. She tweeted that “male people are not women” to oppose the proposed amendments to the UK Gender Recognition Act, permitting persons to self-identify legally as the opposite sex. Her tweets argued that men cannot transition biologically into a new sex, by surgery or otherwise, despite whatever gender they applied to themselves. Her tweets and beliefs are considered offensive to the transgender persons, and it according to her resulted in denial of renewal of her employment contract.

Maya Forstater took her case to the Employment Tribunal on the grounds that she had been discriminated against, because of her beliefs. The Employment Tribunal dismissed her case saying that she was an “absolutist in her view of sex” and it was “not worthy of respect in a democratic society”.

Against the original judgment, Forstater filed an appeal before the Appellate Tribunal. There, Equalities and Human Rights Commission (EHRC) impleaded itself, arguing that her beliefs/philosophical beliefs were protected under law.

The Employment Appellate Tribunal presided by Justice Choudhury allowed her appeal, reasoning that Forstater’s ‘gender critical’ views were philosophical beliefs attracting protection under the law (Equality Act). Philosophical beliefs could be excluded from legal protection only if they are akin to advocating “Nazism or Totalitarianism” or “espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society“. The Tribunal found that Forstater’s comments and beliefs were shared by others and this therefore met the threshold of being a “philosophical belief“. Elucidating the principles applicable, the Appellate Tribunal remanded the case back to the lower Tribunal to decide whether her termination was indeed caused by her contentious beliefs.

This judgment is important because it held that ‘offensive and abhorrent beliefs’ according to some, is not a ground to terminate the employment of an employee.

In Indian context, this judgment, at present, may not have any relevance since we have Unlawful Activities (Prevention) Act, 1967, Section 124IPC (Sedition), 499 IPC (Defamation), Section 67 IT Act and other penal provisions to ensure that thinking and beliefs of Indians are kept in tandem with the ruling political party. But one day, we may have issues of like Ms. Forstater’s, and judgment of ETA is a beacon in the right direction.

Judgment of ETA in Maya Forstater v. CGD is available here.

Appellate Authority under Sexual Harassment of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013

Guest Post: By Adv. ES Firos

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 seeks to protect women from sexual harassment at their work place. It was enacted on the basis of recommendation of the Honourable Supreme Court in Vishaka & Ors v. State of Rajasthan (1997 (7) SCC 323), in which it was observed that Sexual harassment at work place is a form of discrimination against women and it violates the constitutional right to equality.

According to Section 9 of the Act, any aggrieved women may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or to the local committee in the case it is not so constituted, within a period of three months from the date of incident and in case of series of incidents, within a period of three months from the date of last incident.

Section 13 of the Act mandates that the internal committee and local committee should submit a report of its findings to the employer, or the case may be, to the District officer within a period of ten days from the date of completion of the enquiry. If the internal or local committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the district officer, the action to be taken.

Now, what is the remedy available to the person aggrieved from the recommendations made under Section 13 of the Act or non-implementation of such Recommendations?

Section 18 provides for an appeal against recommendations made by the internal or local committee constituted, or non-implementation of recommendations. According to it, where the service rules applicable to the person concerned do not provide a forum for preferring appeal, then the appeal has to be preferred in the manner prescribed under the Act.

When Service Rules do not prescribe an appellate authority for sexual harassment, then Rule 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 comes into operation for preferring appeals. According to Rule 11, appellate authority notified under Section 2(a) of the Industrial Employees (Standing Orders) Act, 1946 is the competent authority to deal with the appeals under Section 18 of the 2013 Act.

However, under the Industrial Employees (Standing Orders) Act, 1946, there is a concept called ‘Appropriate Government’ (under S.2(b)), which guides one to the correct appellate authority. If the employer-establishment is one established, owned, controlled or wholly or substantially financed by the funds provided directly or indirectly by the Central Government, then the Central Government is the Appropriate Authority. Otherwise, it is the State Government which is the Appropriate Authority.

For the establishments having Central Government as the appropriate authority, the Appellate Authority under the 2013 Act is the Deputy Chief Labour Commissioner (Central). For all other establishments having State Government as the appropriate authority, the Appellate Authority under Sexual Harassment Act in Kerala is the Regional Joint Labour Commissioner, under the State Labour Department.

Correction of Date of Birth in Service Book

The general legal principle is that an employer can consider a claim for correction of date of birth of an employee, in his service records, if he prefers an application within a reasonable time from the date of joining into the service. As to what would constitute a reasonable time, various case laws suggest that it is a decision that has to be taken on a case to case basis, taking into account various factors such as the bona fides of the claimant, his/her conduct, whether he/she would have obtained an unintended advantage while securing employment were the corrected date of birth taken as the actual date of birth, whether the employee is estopped from claiming a different date as his date of birth and the prejudice that would be caused to his juniors in service through an acceptance of the claim.

In Kerala Government Service, correction of date of birth is governed by GO (P) No. 45/91/P&ARD dated 30/12/1991. According to the said government order, after 30/12/1991, the correction of date of birth if any needed in the case of a Government employee shall be made within five years of one’s entry into service. In the case of those who have already crossed this limit, one year time from 30/12/1991 is allowed, provided they apply before the two years period preceding retirement, reckoned with reference to the date of birth as recorded in the service book.

Kerala Maternity Benefit Rules, 1964

A friend of mine asked me to send a copy of Kerala Maternity Benefit Rules, which according to him, is not available anywhere. So I’m uploading a scanned copy here, for everyone.

Right to Service in Kerala Labour Department – Notification