| SPOTLIGHT |
The Employment Tribunal has found that 'XYchromosomeGuy' who objected to his local authority employer's pronouns policy was fairly dismissed. Jo Moseley looks at the lessons from the case.
Over the last few years many employers have invited staff to include their ‘preferred pronouns’ in their email signatures. Often, they do so to promote ‘inclusion’ and to encourage staff to bring their ‘whole self to work’. In Orwin v East Riding of Yorkshire Council, an employment tribunal had to determine whether an employee who added a provocative ‘pronoun’ to his email signature, in response to the introduction of a pronoun policy, had been unfairly dismissed and unlawfully discriminated against because of his gender critical beliefs.
Facts
Mr Orwin worked for the local authority as an IT officer. In 2022 the council invited its staff to ‘consider adding pronouns to [their] email signature’ if they wished to do so to demonstrate that ‘everyone matters and should feel valued’. It provided guidance on pronouns and a drop-down menu to help staff amend their signatures with a number of options, including one not to include any pronouns and another which prompted staff to write their own pronouns. It said that including or not including pronouns was an individual choice.
Mr Orwin held gender critical views and took exception to the pronoun policy. He believed that the policy was intended to ‘faciliate gender self-identification’ and he decided to add the words ‘XYchromosomeGuy/AdultHumanMale’ to his email footer. He explained his reasons for doing this to his line manager, who suggested that he simply take the option of not adding pronouns. He rejected that idea on the basis that it would ‘be accepting this garbage’ and that the description he had chosen would help him to feel valued in the workplace. He later admitted that he wished to challenge the policy and had adopted ‘deliberately provocative pronouns’ to do so.
The council held a number of meetings with Mr Orwin and genuinely tried to find a work-around that both parties could live with. It asked him to remove his email footer on four separate occasions and made it clear that if he continued to ignore its reasonable management instructions it would take disciplinary action against him. Mr Orwin refused, was suspended and dismissed for gross misconduct due to insubordination. The council decided that dismissal was the only reasonable option open to it because Mr Orwin had said that he would continue to ignore its instructions.
His appeal failed and he issued proceedings against the council for unfair and wrongful dismissal and direct discrimination based on his protected belief.
Tribunal decision
Mr Orwin argued that his right to express his ‘precise gender identity’ by way of his email signature was a manifestation of his gender critical beliefs and protected under Articles 9 (freedom of thought, conscious and religion) and 10 (freedom of expression) of the European Convention on Human Rights, and his dismissal amounted to less favourable treatment under the Equality Act 2010.
The tribunal decided that Mr Orwin wanted the council to change its pronoun policy and had adopted the title ‘XYchromosomeGuy’ etc as a way of mocking the idea of gender-self ID and was designed to offend. He had been dismissed for inappropriately expressing his protected beliefs - not for holding those beliefs, and therefore was not protected under Article 9.
He got no further with his arguments under Article 10. The tribunal ruled that the interference of Mr Orwin's freedom of expression was appropriate and in line with the council's public sector equality duty to foster good relations between people with and without various protected characteristics. There was also a risk of reputational damage: he had a public-facing role and if his email footer had come to public attention – whether by sending an external email or through the press - it would have suggested that the council allowed its staff to mock the people it served.
Mr Orwin had not been dismissed because of his protected belief and his direct discrimination claim also failed.
He hadn't been unfairly dismissed either. He had been given at least four chances to change his email and was dismissed as a last resort. The tribunals agreed that the council had been left with no choice in the matter given he had refused to comply with a reasonable and lawful management instruction and had made it clear that he would continue to do so. He had committed gross misconduct and his claim for wrongful dismissal, therefore, also failed.
Tips for other employers
This decision highlights the distinction between holding and manifesting a belief, and the differing levels of protection available to an employee whose actions come into conflict with their employer's inclusion policies.
The issue of requiring people to announce their pronouns is contested and is not a neutral position for an employer to take. It's interesting that, in this case, the tribunal acknowledged that the council had adopted a ‘political position' by introducing the policy and had ‘accepted the legitimacy of gender self-identification’. It also found that ‘the implementation of the policy was poorly thought through and badly executed'. The guidance was vague and allowed the claimant to adopt the position he had by providing an option for staff to include any pronouns not on the drop-down list.
We are likely to see other cases about the required issue of pronouns and employers need to consider both the direct, indirect and harassment risks of their policies.
Jo Moseley is Lead Practice Development Lawyer at Irwin Mitchell.
