Orwin v East Riding of Yorkshire Council

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James Orwin was employed by East Riding of Yorkshire Council as an ICT Project Officer from 2018 until 2022. On 13 April 2022 the Chief Executive of the respondent sent an email to all employees which contained the following invitation:

I also want to take the opportunity to invite you to consider adding pronouns to your email signature, should you wish to do so.

Clearly this is a matter of individual choice, but I am keen to ensure that all staff know that the choice to do so is available to them and that they will be supported in that choice in line with our workforce principles:

1. everyone matters and should feel values

2. we recognise the importance of diversity for our organisation and community

3. we will seek to understand and minimise any barriers our people face

4. we will make sure our people policies and approaches encourage and support a diverse workforce

The Tribunal concluded, based on the agreement of the parties, that the reason for this email “was to promote inclusion of people who identify their gender in a way that is not necessarily consistent with their biological sex. … The policy was not introduced simply to avoid confusion or uncertainty for people with names that can be used for men or women like “Sam” or “Jo”” [23].

Orwin interpreted this invitation as more than this, however, viewing it as an attempt to facilitate self-identification of gender in the workplace. This led to a decision to self-identify by adopting “XYchromosomeGuy/AdultHumanMale” as a pronoun footer. It is important to note that Orwin explained this decision as “a position of critical compliance” based on gender critical beliefs.

Orwin then emailed a senior manager stating “I don’t feel I can choose not to state a preferred pronoun, or chose the usual biological he/him, and I’m pretty sure whoever dreamt up this nonsense isn’t actually interested in equality, diversion [sic] and inclusion”. When asked would it not be possible to simply take the option of not adding pronouns, Orwin replied:

Not adding a pronoun would be accepting this garbage, and is not an option I can choose, I think what I will be using is bound to challenge the agenda of those who are implementing it.

The Tribunal felt it necessary to quite extensively from Orwin’s correspondence in order to understand the nuances of the position adopted. In an email to a senior manager in response to a request to remove the pronoun footer, Orwin stated:

As discussed on our call earlier, I have removed what I would choose as my preferred pronouns from my email signature until further notice. I understand (and apologies (sic) for) the difficulty in which this potentially puts my line managers. However, I believe that (even if I'm given the choice not to add one) the corporate policy of providing employees with the option to add preferred pronouns to an email signature, is a political position that the Council has no mandate to adopt; and one that I must dissociate myself from by rejecting.

I accept your point that this is such an unusual issue that you will need to escalate to more senior colleagues.

As I have said, I believe choosing not to add a pronoun, or to use the anodyne biological he/him, is not an option for me. Of course, I understand that some people don't want to go by pronouns with gender associations they reject; but I personally associate pronouns with biological sex, not gender.

I, myself, do not want to go by pronouns with transgender associations (which I believe most pronouns acceptable to the Identity Politics lobby carry); and I feel that complying with this without challenge would be tacit acceptance of the clearly divisive, exclusionary nonsense of identity politics.

To avoid ambiguity, I fully support the rights of biological females to exist without harm being done to them by biological males who self‐identify as gender females, or those organisations and institutions that support such individuals and are facilitating this kind of harm. And I also support the right of anyone to adopt any legally acceptable lifestyle they choose.

As history has demonstrated on many occasions, remaining silent when long‐standing cultural norms, morals and principles are under threat, facilitates the steady creep of evil. I cannot and will not remain silent on this.

Therefore, in line with East Riding of Yorkshire Council's claimed workforce principle that 'everyone matters and should feel valued', and recognising the importance of diversity, I would like to claim an equal right to diversity by declaring my preferred pronouns to be: (XY‐chromosome‐guy/adult‐human‐ male).

I hope my departmental colleagues, and the Council more widely, feel they can support me in my choice ‐ to help me feel valued in the workplace.

James Orwin

ICT Project Officer

The Tribunal therefore concluded that the real reason that Orwin added “XY-chromosome-guy/adult-human-male” was as an act of protest. When asked about the possibility of raising a grievance or challenging the policy directly, Orwin responded that this would have been ineffective and that the only way to challenge the policy was to adopt deliberately provocative pronouns. The purpose was to provoke a reaction in the hopes of changing the policy. The Tribunal concluded that this effectively amounted to mocking the policy.

Orwin was told that it would be inappropriate to use the proposed pronouns in a corporate email signature and was asked not to add them and then later told not to use them when this request was ignored. This was also not complied with and on 5 May 2022 a formal instruction was given in writing to remove the content from the email footer. It was communicated in writing that failure to follow this instruction may result in disciplinary action being taken. Orwin responded, refusing to comply with this instruction and stating that the email footer was “the most precise expression of my gender identity”.

The next day a manager emailed raising concerns that Orwin’s email footer was offensive to members of the LGBTQ+ community and asked whether it was in line with internal policy. The Tribunal concluded that it was far from explicit what this concern was or what offence was being alluded to in the email but did note that both Orwin and East Riding of Yorkshire Council accepted that the email footer could be offensive.

Twice more the claimant was instructed to remove the wording from the email footer, in one incidence where a manager warned that the wording was offensive to transgender persons (without explaining how or why). Eventually Orwin was suspended pending invenstigation into “Serious insubordination in that you have failed to follow a reasonable management instruction, on multiple occasions, to remove the wording (XYChromosomeGuy/AdultHumanMale) from your Council email footer.”

Following the investigation, Orwin was dismissed on grounds of gross misconduct in the form of repeated insubordination in the fact of a reasonable management instruction. He sued for direct discrimination on grounds of gender critical belief.

The central question before the Tribunal was whether the email signature counted as a manifestation of gender critical belief. If it was, then there would need to be further consideration of whether there was less favourable treatment on the basis of that manifestation. If it was not, then any less favourable treatment afforded on the basis if the email signature was not discrimination based on gender critical belief.

The law is clear that discrimination based on a manifestation of a protected belief is discrimination based on the belief and is therefore covered by the Equality Act 2010. Importantly, however, manifestation here takes on a particular meaning that reflects the protection afforded to the right to religion or belief contained within Article 9 of the European Convention on Human Rights. The leading case on manifestation of belief is Eweida and others v United Kingdom (2013) 57 EHRR:

Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 § 1. In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question

So it is not sufficient for an act to be motivated or inspired by the underlying belief. For it to be protected under s10 of the Equality Act, there must be a sufficiently close and proximate nexus between the belief and the act in question in order for it to be considered to be intimately linked to the belief.

The Tribunal concluded that there was not a sufficiently close causal nexus between the act of putting those specific words as an email footer and Orwin’s gender critical beliefs. In coming to this conclusion the Tribunal noted that relevant question to ask here is “why did the claimant creat the email footer?”. It concluded that “The simple answer … is as an act of protest” [228]. Orwin knew that this was a deliberately provocative act and the purpose of doing so was to try to persuade the respondent to change their policy. Therefore, “It was not, as a matter of fact on the findings [the Tribunal] made, done out of a need to adhere to the claimant’s gender critical beliefs .. the claimant was, in [the Tribunal’s] judgment, mocking the idea of gender self-identification” [228].

This was entirely consistent with Orwin’s gender critical beliefs and amounted to conduct which was motivated or inspired by the belief but not manifestation in the Eweida sense; it was not intimately linked to gender critical beliefs in the way that prayer or the wearing of religious clothing might be.

This means that the conduct complained of was not based on Orwin’s protected belief. He was disciplined because of the innaproperiate conduct he engaged in which was motivated or inspired by his belief but which did not amount to a manifestation of it for the purposes of anti-discrimination and human rights law.

The Tribunal also considered other arguments relation to human rights and unfair dismissal but they are not the focus of this post. It ultimately concluded that none of the complaints made were well founded and so dismissed them.

Note: This is a summary of the case. A discussion and analysis of it will follow over the next few days. I’m currently recovering from jet lag and summary is about as much as my brain can handle at the moment.