A short open letter to those in the arts sector and charitable sector putting your names to recent open letters. The common feature is a very one sided equality focus (only towards people coming within protected characteristics of gender reassignment), post the For Womens Scotland Supreme Court decision.
You are possibly being very foolish, legally.
Until last November I was a practicing equality solicitor acting for claimants. I litigated 100s of cases, many against charities and arts organisations for unlawful discrimination and harassment. Yes, staff from such paragons of virtue do unlawfully discriminate against and harass others from time to time.
If in the near future, a female, gender critical or lesbian staff member or service user sues your organisation for unlawful discrimination or harassment, this signature in this open letter will be used as evidence against you. It could even be sufficient extra to transfer the burden of proof to your organisation.
You will be cross examined by a barrister who will submit that you are at the least unthinking about discrimination etc against their client. Or at worst actively enthusiastically directing such alleged discrimination.
Do your Directors or Charity Trustees know you are exposing your named organisation to legal and reputation risk?
Don’t believe me? Go onto the Employmemt Tribunal website and look up the Jo Phoenix v Open University judgment issued in 2023. Read how the open letter was regarded by the ET.
Then read the judgment for Fahmy v ACE where the evidence of the organisation’s own one-sided equality related communications to staff meant the organisation could not rely on what is known as the employers defence ( s109(4)) – in other words they could not argue they’d done everything they could to stop discrimination occurring.
As an employee, are you safe from legal action? No, theoretically a claim can be made against you personally as well and your employer is not obligated to support you.
So, my advice is simple…
Don’t sign anything, including open letters, without understanding fully the potential adverse consequences of doing so.
The Perils Of An Open Letter
