Help to Build

Posted on by Ilinca Mardarescu

We are all familiar with Help to Buy – a government-backed scheme which helps first time buyers purchase a new-build home with just a 5% deposit. However, it is now time to become familiar with Help to Build.

Unlike Help to Buy, Help to Build aims to help those seeking to commission or build their own home and helps builders with cash flow during the build. More and more individuals have ambitions to build their own home, as they have the freedom to decide on the design, internal layout and location. The main barrier to doing so however, being finding the money to fund the project. Help to Build aims to eradicate this barrier so that these ambitions are achievable and self-build homes are more accessible and affordable.

What is Help to Build?

Help to Build is a new government equity loan, announced back in April 2021, that will be available to people in England who want to custom build or self-build their own home.

An equity loan is offered, between 5% and 20% (up to 40% in London), based on the total estimated costs to buy a plot of land and build the home. If eligible, up to £600,000 can be spent on the new home, which must include the cost of the land if not already owned and no more than £400,000 on the cost to build. The loan is interest free for five years.

A minimum of a 5% deposit will be needed and a self-build mortgage, which must be provided by a lender registered with Help to Build. Funds will be released at various stages of the build until the build is complete, at which point the mortgage will automatically switch to a repayment mortgage which must be in place for the duration of the equity loan, normally 25 years.

The redemption amount is based on the value of the home at the time chosen to repay and is not linked to the amount initially borrowed. Therefore, if the market value of the home increases above the estimated land and build costs, the amount owed on the loan will increase and vice versa if the market value decreases.

If the equity loan is offered, the purchase of the land (if needed) and the build of the home must complete within a span of 3 years.

Who is eligible?

Anyone who is 18 years of age or over and has a right to live in England, the newly built home will be their only home and they have secured a self-build mortgage from a lender registered with Help to Build.

Application Process

The scheme is still in the initial stages and relatively new. Whilst it was previously believed that applications will open for Help to Build last year during winter, it does not appear this was the case. However, while the exact date has not yet been announced, it is only a matter of time before the scheme is up and running. To be first in line for more information, register your interest in Help to Build here.

For further information on the Help to Build: Equity Loan scheme, please click here to be redirected to the Gov.uk page.

Video Witnessing Will Signings Extended To 2024

Posted on by Ilinca Mardarescu

Under Section 9 of the Wills Act 1837, there should always be two witnesses present during the physical signing of the Will with the testator (the person who has made the Will). The witnesses would also be required to sign the Will in the testator’s presence to validate the document. These rules have been key pillars in the process of validating a Will until the Covid-19 pandemic brought about unprecedented change. As the death rates began to increase, restrictions were put in place by the government, which lead to the elderly population being forced into self-isolation. Suddenly, the need for valid Wills to be made in a timely and efficient manner became a priority.

As a result, new legislation was introduced in 2020 broadening the definition of the witnesses needing to be “in the presence of”, to include video conferencing and “other visual transmission”. This was subsequently backdated to January 2020 and kept in place until January 2022. The government has recently announced that it has extended the legislation till January 2024.

So, why has this legislation been extended when only 14% of solicitors who drafted Wills during lockdown took part in remote witnessing? According to reports from the Law Society, the option to remote witness has proved helpful amongst vulnerable people who need to set their affairs in order and cannot afford to do so in a physical capacity. This legislation was created to support those who are isolating, vulnerable or incapacitated by further restrictions, and has seemingly achieved this goal. However, “video conferencing” to witness and validate a Will is not without its complications.

One of the risks a solicitor must be aware of is that the testator could lose their mental capacity to validate the Will over time. If the testator is not in a proper capacity to sign their Will, it would be difficult to tell this through a screen. There could also be a chance that undue influence is at play by someone off-camera and out of sight during the signing. Unfortunately, there is no concrete way of confirming that the testator is alone and/or uninfluenced over a video call.

There is also a risk of documents going missing in the post. A Will is only valid once it is signed by the testator and both witnesses. If the Will is lost in the post before being signed by the witnesses it will need to be re-signed, causing unnecessary delays. If there is a delay between the testator and the witnesses’ signings, there is a high probability that the testator (especially a vulnerable person) could die before the Will is completed.

It is important to note that although video witnessing is a legal method to validate your Will, it is not the most secure. There is a potential risk of fraud. If a third party posts or delivers the Will, there is a risk they could replace certain pages or the Will in its entirety. The Ministry of Justice (MOJ) have also stressed that the “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.” There are several ways in which Wills can be witnessed, such as witnessing through a window, carpark witnessing or from another room in the property.

Here at Aston Bond, we believe validating any Will is a matter of great importance and for that reason we encourage signing your Wills in person at our offices or via a home visit. It is imperative to confirm that the testator has full mental capacity and is not being coerced or pressured to sign the Will in any way. We would recommend that other options should be explored before relying on video witnessing.

For more information on making valid Wills through using video conferencing, you can check out:

https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing#video-witnessing

If you have any queries, please do not hesitate to contact myself at kkumari@astonbond.co.uk or Rachel Jones at rjones@astonbond.co.uk

No sick pay for unvaccinated staff

Posted on by Ilinca Mardarescu

The tensions surrounding people’s choice on whether to have the vaccine or not has recently had a lot of airtime. Few have missed the problems being unvaccinated has caused to Novak’s career recently when his visa was repealed in Australia.

Ikea have also now weighed in with the announcement that they will be cutting company sick pay for those employees who are not double-jabbed. Indeed, although Ikea has received the most publicity for this, other companies have also announced a similar intention.

Ikea’s reasoning for this is that staffing levels currently are a great concern and those who are not double-jabbed have to self-isolate if they have come into close contact with someone who has Covid. This could mean that a considerable proportion of staff would have to be off work without even being ill but purely due to the fact they have not had their double vaccinations. The company has said that throughout the pandemic it had not furloughed staff and those self-isolating had received full pay. Company sick pay is that over and above the required statutory sick pay which is currently set at £96.50 per week. But it is in fact common for the entitlement to company sick pay to have some conditions attached (such as the requirement to see a company-appointed doctor as required). However, the aim of this recent change is for Ikea to be able to keep its stores open and running effectively, which it is currently struggling to do. Ikea has been at pains to point out that this will not be a blanket approach however and that they will consider each and every case individually. In truth, that is the only way they would be able to avoid potential claims of disability or other discrimination. There are those who cannot have the vaccinations or have medical reasons for not having them.

In legal terms, the decision will fall to managers to consider any mitigating circumstances. No doubt they will be supported by HR but training on issues to consider in these circumstances is essential. The proposed changes will also need to be implemented correctly to avoid any allegations that such changes are a breach of employee’s contracts.

The decision is bound to be a controversial one but, implemented in the correct way, is not necessarily an illegal one. Ikea have a legitimate aim which is to avoid too many staff members being off work, especially unnecessarily so. The question as to whether their actions are proportionate will no doubt be closely scrutinised and may well end up being the subject of a challenge later on. it will also be interesting to see how many other companies adopt a similar approach. But irrespective of the legalities, some will no doubt argue that this is yet another way of adding pressure for those that have chosen not to be vaccinated.

Jade Gani winner of the Young Practitioner of the Year at the STEP awards

Posted on by Ilinca Mardarescu

We are extremely proud to announce that our very own Jade Gani was the winner of the Young Practitioner of the Year at the STEP awards last night.

 STEP is the global professional association for those advising families across generations.  Jade, and the private client team as a whole, have worked particularly hard during the past few years, especially during the pandemic, and this recognition is very much deserved.

The Judges said: In a very strong field, our winner stood out not only for their considerable professional accomplishments but for their selfless commitment to others through their pro-bono and charitable efforts. They devoted significant time, energy and passion to those less fortunate. During a year when many were challenged, they rose above the fray in several ways, including providing free wills for NHS staff.

The awards have been described by notable practitioners as:-

 “The very best in the private client industry – everyone appreciates that the entries are genuinely and fully scrutinised and independently and rigorously judged – worth winning in other words!” (Ceris Gardner TEP, Maurice Turnor Gardner LLP)

“The Oscars of our industry and the one all of us wish to win. Clients, staff and competitors all look to these awards as a measure of quality.” (Mark McMullen, Stonehage Fleming)

Stephen Puri, Aston Bond CEO commented:

“We are delighted for Jade. She continues to work hard and strive for the very best and this result is testament to her commitment to work and clients alike.”

Proposing a Proposal: Not Just for Couples

Posted on by Jade Gani

In this article our Head of Private Client, Jade Gani, discusses her recent experience with a particular Client, Ms A, and how it made her reconsider standard Estate Planning advice.

I have been in this area of work for a long while now, so there aren’t many situations which take me by surprise or make me re-consider my approach. So when I met with Ms A, I was taken aback and joyfully reminded that every Client’s needs and goals are distinct and different.

I attended the meeting together with a well-trusted and excellent Financial Advisor, as Ms A’s Estate was taxable and she had indicated she would like to actively Inheritance Tax [“IHT”] plan, following a recent cancer diagnosis. She owns two properties, some cash investments and a beautiful, friendly cat. She had never been married and doesn’t have any children.

In her Will, Ms A appointed her good friend, Mr B, as her Executor and wished to gift her second property to another dear friend, Ms C, leaving the remainder of her Estate to a beloved family member. We spoke about her funeral wishes and personal effects, but her main concern was the amount of IHT that would fall due on her Estate.

Of course, we discussed the current Nil Rate Band [“NRB”] and Residence Nil Rate Band [“RNRB”] allowances and it was clear she would not meet the criteria for the new RNRB allowance. This left her with only the ordinary NRB allowance of £325,000.00 and an Estate in excess of £600,000.00 – meaning a substantial IHT bill might fall due on her death.

Together, we discussed various IHT planning tools, such as the annual allowances, Potentially Exempt Transfers [“PETs”], Business Property Relief [“BPR”] investments and much more. Ultimately, Ms A wanted to retain the rental income from her second property while she still might need it and didn’t feel like diversifying her investments further.  

“But, is there nothing else we can do to save tax quickly?” she queried, as I looked at the Financial Advisor for any last suggestions I might have missed. “What about spouse allowances? How does that work?” she asked. I dutifully explained the spouse exemption and transfer of allowances to Ms A, but politely reminded her that as a single person who had never been married, this would not apply. I asked if she was in a current relationship to which she confirmed she was not.

“But…” she pondered, “Does it work the same for Civil Partnerships?” – I confirmed it did. “Well then, I think I should like to enter into a Civil Partnership with my friend, Ms C, then! Would that work?”

The Financial Advisor and I shared a look. With a wry smile, I confirmed that I couldn’t see any reason why not, provided that Ms C was willing. We discussed the drawbacks – if Ms C decided to dissolve the partnership at a later date, if they fell-out and how it could impact Ms C’s Estate if she passed away first. On balance, Ms A felt the benefits greatly outweighed the negatives.

I confirmed I would include an “expectation of” clause in the Will, so that it wouldn’t be revoked if she married or entered into a Civil Partnership with Ms C. With a knowing smile, Ms A said she was looking forward to the speculation amongst her associates that would follow such a plan, as she and Ms C had been the best of friends for a very a long time.

I realised that, amongst all of the complex and detailed planning advice we had offered, I hadn’t seen the very simple, incredibly effective solution that was right in front of us the whole time; probably because it hadn’t occurred to me that Ms A would consider such a route with someone other than a partner.

But, just because it isn’t a common approach, does not mean it isn’t a sensible one. Granted, this probably wasn’t the approach the government had in mind when they first introduced Civil Partnerships, however, as there is no legal requirement to consummate a Civil Partnership, perhaps it will teach those in charge a lesson about the importance of equality for all from the outset…

By the end of the meeting we had a plan that would mean very little, if any, IHT would fall due on Ms A’s death. As a result, we were left with a very satisfied Client.  

To be eligible to register for a Civil Partnership, you must ensure you and your proposed Civil Partner:-

  1. Are both 16 or over. If you are 16 or 17, you will usually have to get written consent from your parents or legal guardians;
  2. Have lived in the same area in England or Wales for at least seven days;
  3. That neither of you is already either a civil partner, or married; and
  4. Are not close blood relatives to each other.

So, whilst you might routinely advise unmarried couples of the benefits of marriage or Civil Partnerships from an IHT perspective, have you ever advised your single Client to do so with one of their potential beneficiaries? If not, now might be a good time to start!

Aston Bond Shortlisted for The British Wills and Probate Awards 2021

Posted on by Ilinca Mardarescu

We are delighted to announce that our Private Client team continue to build on their successes and have been shortlisted for two awards at the British Wills & Probate Awards 2021.

Background

Last year, our Head of Private Client, Jade Gani, won the ‘Young Practitioner of the Year’ Award at the national British Wills & Probate Awards 2020. This award was a crowning moment for our team as Jade secured the win against formidable competition from much larger, highly regarded firms, namely Shoosmiths and Morrisons Solicitors.

Since then, the department has gone from strength to strength. The team won the ‘Best Community Contribution” Award at the Probate Research Awards 2021, which recognised our dedication to the local community as well as our charity work. Ilinca Mardarescu, Director, also won the ‘Unsung Hero’ Award for all the unwavering support she provides to the department and the firm as a whole.

Jade’s national success has even extended globally as she is a finalist for the ‘Young Practitioner of the Year’ at the 2021 STEP Private Client Awards. The winner of this award will be announced via a virtual ceremony on 23 September 2021.

British Wills & Probate Awards 2021

At this year’s prestigious British Wills and Probate Awards 2021, we are excited to announce that Aston Bond have been shortlisted for ‘Probate Provider of the Year (Small Firms)’, alongside fellow shortlisters, Farewill Ltd and Sterling Trust Law Corporation Limited. Only the firms and practitioners who excel in the field will be awarded the winning spot.

The firm’s shortlisting for ‘Probate Provider of the Year’ required us to:-

  1. Demonstrate the ability to deliver high standards of service and support to clients;
  2. Show that they provide real benefits to clients and strategic partners;
  3. Show that they work consistently to improve efficiencies and reduce costs for all parties;
  4. Show innovation in developing and bringing to market new service offerings; and
  5. Show they adopt the best philosophy to client integration.

In relation to Aston Bond’s nomination for the Probate Provider of the Year, Director Ilinca Mardarescu said:-

“We are so proud of everything that the whole team has achieved.  They are going from strength to strength and we feel that this is testament to their passion for the work they are doing.  They genuinely care about helping our clients in the very best way possible.”

Jade also received several nominations for Today’s Wills and Probate Industry Champion; a new category introduced this year to recognise those who have made contribution to the sector for the better. The wider sector nominated individuals outside of their own organisations and we are proud to say that Jade’s nominations were impressive enough to see her shortlisted with other remarkable members of the industry.

Every nomination had to provide the following:-

  1. A demonstration of how they put their client’s interests at the forefront of everything they do;
  2. Evidence of how they have excelled at dealing with the transition to a remote working environment; and
  3. A demonstration that they have overcome challenges with minimal disruption to the outcome of their work.

When asked about her nomination for the award, Jade replied with the following:-

“I am a little in shock. It was overwhelming to win the Young Practitioner Award last year, but to be recognised amongst the entire industry is something I could only dream of, until now! I have looked up to Michael, Ian and Holly for a long time; seeing my name up there with them makes me feel proud of my journey and even more determined to strive to be the best I can for my team and clients. Each of them are worthy winner in my eyes.”

It is now up to a public vote to decide the winner of this category, which is open until 27th September 2021. If you would like to vote for your chosen winner, you can do so here:- https://www.britishwillsandprobateawards.co.uk/industry-champion-award/

The winners will be announced at a hybrid event on Thursday 21 October 2021.

Jade Gani Shortlisted for Global STEP Private Client Awards 2021

Posted on by Rachel Jones

We are exceptionally proud to announce that our very own Head of Private Client, Jade Gani, has been shortlisted for ‘Young Practitioner of the Year’ at the global STEP Private Client Awards 2021; awards which are seen as the hallmark of quality within the Private Client industry and which celebrate excellence among the profession.

The awards saw hundreds of entrants from across the world, all of which underwent a rigorous judging process before being narrowed down to the shortlisted finalists. Judges are supported by an independent panel of experts comprising of internationally renowned practitioners in the wealth management arena.

The awards have been described by notable practitioners as:-

 “The very best in the private client industry – everyone appreciates that the entries are genuinely and fully scrutinised and independently and rigorously judged – worth winning in other words!” (Ceris Gardner TEP, Maurice Turnor Gardner LLP)

“The Oscars of our industry and the one all of us wish to win. Clients, staff and competitors all look to these awards as a measure of quality.” (Mark McMullen, Stonehage Fleming)

Whilst Jade specialises in complex Wills, Trusts, Tax, Estate Planning and Court of Protection work and has a fantastic relationship with her colleagues, Clients and 3rd parties alike, it was her unwavering charitable endeavours that formed the focus of her nomination. Most notably, together with Directors Duncan Thomson and Stephen Puri, Jade successfully launched The Wishing Will Foundation earlier this year, after two years of careful planning, cultivating local relationships and sheer hard work.

The Wishing Will Foundation is a Community Interest Company that prepares expertly drafted Wills in exchange for donations to local hospices and charities that support the most vulnerable members of our community. They are currently partnered with Thames Hospice, Ella’s, Christopher’s Smile and Citizen’s Advice Bracknell & District – with many more local charities registering their interest to become involved too. Jade commented:-

“The Wishing Will Foundation is a cause very close to my heart. It is important to me to support our wider community as much as possible – and the Wishing Will allows me to do that by using my expertise to its full advantage. It should also help us reduce the prevalence of Intestate Estates, meaning more certainty and peace of mind for our loved ones using the scheme. It also helps to spread the word about the amazing work undertaken every day by our partnered charities, who often rely on legacies in Wills to continue to provide their services.”

In respect of the STEP Private Client Award shortlisting, Jade added:-

“I am absolutely blown away to have become a finalist in such prestigious – and global – awards! They are the gold-standard of this line of work and the fact that my efforts to bring our community, local charities and solicitors together in a positive way is being recognised on such renowned stage is beyond my wildest expectations. I feel extremely grateful just to be shortlisted and hope that this will encourage other professionals to become equally involved in charitable community initiatives too.” 

This shortlisting follows on Jade’s win at the British Wills and Probate Awards 2020 for ‘Young Practitioner of the Year 2020’ and the firm’s win at the Probate Research Awards 2021 for ‘Best Community Contribution’. We are proud to say that Jade’s work ethic epitomises Aston Bond’s core values and we couldn’t be more excited to support and celebrate with her on 23 September at the virtual awards ceremony. Please join us in wishing her the very best of luck!

Stephen Puri, Aston Bond CEO commented:

“We are delighted for Jade. She continues to work hard and strive for the very best and this nomination is testament to her commitment to work and clients alike.”

The Tribunal’s failure to take judicial notice of childcare disparity

Posted on by Ilinca Mardarescu

In the judgement of Dobson v North Cumbria NHS Trust, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) failed to consider that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working, including working on the weekends, than men. The EAT referred to this as “childcare disparity” and accepted that the burden of childcare falls disproportionately on women, affecting their ability to adapt to certain working patterns.

After twenty years, the courts and tribunals have taken judicial notice of this disparity and the EAT concluded that the childcare disparity should have been accepted by the tribunal in Dobson v North Cumbria.

Mrs Dobson worked for the North Cumbria Integrated Care NHS Foundation Trust as a community trust. She was working two consistent days a week, but following a review, she was asked to work flexibly, including at weekends. Mrs Dobson was unable to commit to this arrangement because of her caring responsibilities for her three children, two of whom are disabled.

Mrs Dobson’s employment was terminated, and she subsequently bought indirect sex discrimination, unfair dismissal, and victimisation claims. The ET dismissed her claims but she subsequently appealed with the help of Working Families, who intervened and raised the issue of whether the ET should have taken judicial notice of childcare disparity between men and women.

Recently, the EAT found that the ET had erred in limiting the pool for comparison to the team in which the claimant worked and instead confirmed the appropriate pool was all community nurses across the Trust. The EAT also found the ET to have erred in finding no group advantage.  The ET should have taken judicial notice of the fact that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working patterns. The EAT’s conclusions meant that the ET’s decision needed to be reconsidered.

A similar decision was made by the EAT in Hughes v Progressive Support Limited where Mrs Hughes’s employment was not terminated, but her employer said that her contract would be changed to a zero-hours contract if she did not work the hours her employer requested. The EAT found there was indirect sex discrimination if an employer asks an employee to work certain hours, regardless of their childcare responsibilities, even if no penalty was imposed against the employee.

The recent case law makes it clear that certain working patterns and associated rules imposed by employers can disproportionately impact certain groups.  Employers will now need to be conscious of how the issue of childcare disparity can (disproportionately) affect certain groups of its employees.

For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu.

Stamp Duty Land Tax: Understanding the 2% Non-Resident Surcharge

Posted on by admin

We may have bid adieu to the much-reprieved SDLT holiday on the 30 June 2021, however, buyers will still benefit from reduced rates until the 30 September 2021, with a nil rate band of £250,000, and of course we welcome back first-time buyer relief.

Here, we briefly explore the 2% Non-Resident Surcharge (NRS) which was introduced from the 1 April 2021.

What is NRS?

NRS is 2% of the purchase price and only applies to the purchase of a dwelling or dwellings and turns on residence, not nationality.

You will have most likely noticed the introduction of three new questions on the SDLT1 Forms, which are compulsory for residential transactions:

  • Are any of the purchasers non-UK resident?
  • Are any of the purchasers a UK resident close company controlled directly or indirectly by a non-UK resident?
  • Are you claiming Crown Employment Benefit? (If you are non-UK resident due to performing duties for the purposes of your employment under the Crown, NRS relief is available. This relief is also extended to the spouse or civil partner of a Crown servant, provided they are not separated).

Are you a non-resident?

For NRS purposes, a non-resident is a non-UK resident. The UK includes Great Britain (England, Wales & Scotland) and Northern Ireland.

An individual is a UK resident for the purposes of NRS if they have been present in the UK at least 183 days or more in the 12 months before the completion date of the purchase. The 183 days do not have to be continuous, but those 183 days must all fall within 365 consecutive days. If one is present in the UK at the end of a day (midnight), then that day counts.

UK resident close company controlled by non-UK resident

A company is non-resident if either of the below conditions are met on the completion date:

  • Not UK resident for Corporation Tax purposes.
  • A close company which meets the non-UK control test and is not an excluded company.

Most private companies are close companies, and the meaning of one can be found here, where the non-UK control test is also explained.

If any participator in the company who has control, or to whom control is attributed, has not been resident in the UK on at least 183 midnights in the 365 days preceding the completion date, then the company is non-resident.

Control is defined in the Corporation Tax Act 2010 (s. 448, 450 & 451) as an individual who exercises, is able to exercise or is entitled to acquire direct or indirect control over the company’s affairs (more than 50%). Under s.451, the individual’s rights and powers may be attributed to an ‘associate’, which is defined in s.448. For NRS purposes, however, there are changes to the normal attribution rules:

  • There is no attribution between business partners, or between spouses or civil partners, as there usually is.
  • A de minimis rule prevents attribution of rights and powers in a company where the associate holds less than 5%.

Reclaims for Individuals

Individuals have a respite over corporate bodies in that they may be able to reclaim NRS if they become UK resident after paying the surcharge on completion.  Therefore, if the individual can show 183 days UK residence within the following 365 days after completion, NRS may be reclaimed by submitting an amended return during a 2-year period from the completion date.

However, if the purchasers are joint purchasers, and just one of them is non-resident, NRS is payable. The exemption to this is where the purchasers are married or civil partners and living together for tax purposes – in this case, if one of the individuals is UK resident but the other is not, NRS is not payable. Please note, the rules differ for trustees of a settlement.

SDLT and the NRS rules are a complicated area of tax, therefore, please seek advice from a tax specialist if you are unsure and require assistance.

If you would like to discuss this or any other property law related query, please do not hesitate to contact our team here at Aston Bond.

Does philosophical belief justify gender discrimination?

Posted on by Ilinca Mardarescu

Gender critical theory, the idea that sex should not be conflated with gender identity, is now protected as a philosophical belief under s10 of the Equality Act. The implications this has for the workplace resides on whether beliefs that can be considered discriminatory against specific groups, can be legally protected as a “characteristic”.

Back in 2019, Maya Forstater claims she was unfairly discriminated against by her workplace, the thinktank Center for Global Development (CGD), over tweets she made in response to the proposed reforms to the Gender Recognition Act. Employees at the CGD complained that her tweets were “transphobic”, and her contract was not renewed.

The first Tribunal ruled that gender-critical beliefs do not satisfy the Grainger criterion, as these beliefs do not respect human dignity or the “enormous pain that can be caused by misgendering” and are therefore excluded from protection.

Despite this, it was allowed to be appealed to the EAT, believing that the first Tribunal had made an error in its application of Grainger. The criteria will generally protect all philosophical beliefs unless they cross a line into something akin to fascism. With this, the EAT judged that whilst Ms Forstater holds views that may be considered offensive to some, they would not be excluded from protection under the Equality Act. According to the Employment Appeal Tribunal’s final judgement, beliefs that honestly express personal beliefs without actively inciting hate or harassment must be “worthy of respect in a democratic society”.

However, it stressed that transgender people still have equal rights in the workplace, as the ruling has not “expressed any view on the merits of either side of the transgender debate”. Anything crossing the line into hate speech can be justifiably restricted under Article 9(2) or Article 10(2) of the European Convention on Human Rights.

The difference between holding a belief and expressing it raises several questions as to whether the specific philosophy is dangerous to specific groups. The EAT judgement maintained that intentionally misgendering someone with the intention to cause offence is still prohibited and it is not giving those with gender-critical beliefs impunity.

Therefore, whilst this may be seen as a lack of progress for those campaigning for better workplace protection for trans people, their rights are still equally upheld under the Equality Act.  For an employer, finding the right balance between two opposing rights such as these will be the real a challenge.

 

For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu