Pity the poor Arts Council England (“ACE”) – stuck between a rock and a hard place. Losing two Employment Tribunals- and at least two members of staff – all caused by DEI and its interpretation.
This was after Casper Glyn KC, who chairs the Employment Lawyers Association, stated:
“A GB based company rolling back its DEI initiatives for GB workers in response to the chilling of such practices in the US would be both following a legally incoherent path as regards GB law and increasing the risk of adverse findings of discrimination against it.”
No-one could accuse ACE of not having DEI. They had policies, and officials coming out of their ears.
So what happened?
First, former employee Denise Fahmy claimed Harassment related to the protected characteristic of Religion or belief in an Employment Tribunal against the ACE, and won. This was all about a grant to the LGB Alliance to finance a film. The LGB Alliance’s mortal sin was to remove, as it was claimed, the “T” from “LGBT”. As is generally known, it’s fine to add letters or numbers to this acronym indefinitely, with the aim, presumable, of turning it into an ornate version of pi, but take anything away, and there’ll be hell to pay. Following some vehement internal correspondence on the subject of trans identities and rights, a spreadsheet was attached to an email and circulated (who knew the ACE employed actuaries?), which included the comment:
“if I came to work one day, and attended a drop-in session where staff members were openly making racist statements, and asking Arts Council what protection will be offered to them as race – critical staff members – I would feel terrified. I can’t imagine what my trans and nb colleagues are feeling right now.…”
(on page 11 of 26).
Note that the person who circulated the spreadsheet was different from the one who made the comment. The former was a mysterious ”SB”, who resigned before any investigation could take place. We’ll come to the latter in a minute.
The full judgment should be read here – https://didlaw.com/wp-content/uploads/2023/06/Fahmy-judgment-2.pdf – but my interpretation is that the Tribunal thought ACE should have been a bit more on top of what SB was up to – or likely to be up to. We also know that the spreadsheet “included some extremely offensive comments referring to anti-trans (“gender critical”) language from numerous employees of the respondent (ACE).
Fast forward a year or so, and we see this:
Our Claimant this time is a Mrs A Islam-Wright, who made the comment above. The second ET decision gives it a bit more oomph…
“If I came to work one day, and attended a drop-in session where staff members were openly making racist statements, and asking [the first respondent] what protection would be offered to them as race critical staff
members – I would feel terrified. I can’t imagine what my trans and nb [i.e. non binary] colleagues are feeling right now. I’m very concerned that gender critical staff members make funding decisions, and believe it is of the utmost
importance that trans awareness training is delivered and also training about our public sector equality duty – it shouldn’t be taken as given that everyone comes to work with no discriminatory views. We can’t necessarily ‘train’ people out of being transphobic, but we can make it clear that we don’t tolerate transphobia – by not tolerating it.”
This does not appear until page 13 of a total of 43 in the second judgment. Over 50% longer – but fair enough – it had to cover the first judgment.
Again, read the judgment for detail – but it appears Mrs A I-W was involved in ACE disciplinary proceedings – she then resigned and claimed Constructive Dismissal. The ET decided she was unfairly dismissed.
So what are the layman, ACE and their senior executives and Human Resources (HR) team – and similar nationwide – supposed to make of this? My views are as follows:
First, just because you may have done something wrong, you are still entitled to fair treatment. Mrs A I-W may or may not have transgressed some employment criteria – but this does not annul her rights.
Second – it appears that all employees are nearer to an Employment Tribunal than any organisation would like to think. This is particularly important to HR. Whereas 10-15 years ago, such arguments might have been settled in an amicable way, that is not how it happens now. There is a growing attitude syndrome where employees are intolerant of differing views – and the availability of mass communication via internal email and other media means that intolerant views can be exchanged quickly.
Third – it is clear that organisations place – or have placed, certainly up until now – much reliance on HR to manage such issues. Part of this is a new and difficult role.
Formerly – perhaps up until the turn of the last century – HR involved three major areas –
(i) Constructing and supporting management hierarchy structures, job descriptions and associated benefits – (ii) Managing payroll and pensions admin (in conjunction with Accounts), and (iii) Dealing with promotions, demotions, dismissals and other ad hoc issues raised by management and staff.
Since then, increased complexity of payroll means it has become the domain of sophisticated software – usually bought in – so less personal interaction means less work for HR. Controlled management organisation is general, and, once a system is set up, should require only tweaks rather than major changes. Item (iii) is the dangerous one.
For all these areas, but especially (iii), HR is relied upon to have a strong knowledge of Employment Law – ACE seems to have been lacking here – but what happened to them could, obviously happen to any organisation. In my view, the events above were foreseeable. Why?
We have just seen descriptions of the behaviour of two individuals:
A Ms Fahmy, who (legitimately) holds “Gender Critical” views, and exercised her (legal) right to express them in a company environment where appropriate – possibly assisted by her experience as a trade union rep, and
B Mrs Islam Wright, who objects to Gender Critical staff making funding decisions, (even if within their job descriptions), then commenting on “transphobia” and need for “training” in clearly a pejorative way.
What is obvious to me is that having two such people working in an organisation in each other’s ambit (especially when electronic media has made spaces smaller) means such a clash was virtually inevitable.
Unless HR departments start to wise up to these issues, they are going to get inundated.
Fourth – what, precisely, was the role and job description of Mrs Islam-Wright?
Neither tribunal seemed to think this was significant. The first tribunal excludes it. The second simply describes her as a “Relationship Manager, Diversity”, without further comment.
This immediately begs the questions:
- What relationships?
- What, or whom, is she managing?
- Diversity of what?
The answer to the third is explained by the events that started all of this:
- A grant (not from ACE) to the LGB Alliance to find a film
- The withdrawal of that grant, and criticism of the LGB Alliance by ACEs Deputy Chief Executive (DCE).
- Objections to DCE’s comments by Ms Fahey – an ex-union executive who clearly knew her rights.
- An email hurricane, as covered above.
The first tribunal reveals a role of “Abid Hussein, Director of Diversity”. A quick search revealed this description of the role: https://www.artscouncil.org.uk/profile/abid-hussain – and the person https://www.linkedin.com/search/results/all/?fetchDeterministicClustersOnly=true&heroEntityKey=urn%3Ali%3Afsd_profile%3AACoAAAC38e8Bt9mRol0-ru1Dbq_d7lV2-ry38ok&keywords=abid%20hussain&origin=RICH_QUERY_TYPEAHEAD_HISTORY&position=0&searchId=76e2bf2d-d05f-499e-9642-5dd5c3cf9821&sid=*2s&spellCorrectionEnabled=true
The ACE website https://www.artscouncil.org.uk/our-organisation/our-leadership-structure/our-senior-leadership-team shows him as
“Director, Diversity (Senior Director) Arts Council England”.
Presumably, Ms Islam-Wright reported, maybe indirectly, to him. Clearly, Diversity work had a significant role in this organisation of around 1,000 people.
Some questions, which you may see as rhetorical:
- Did Ms I-W have any training in employment law, especially in respect of critical gender belief and expression rights?
- If not, had Mr Hussein received any such training – or could HR be confident that he – as a Senior Director – did not need it – and then did he make it his business that the same applied to members of his team?
- a) and b) were clearly actions that should have been supervised/certified by HR. I note that ACE has an HR Director.
My point is that no blame should be attached to Ms I-W (or even Mr H) if no legal training was required or given. They would both simply be acting according to their lights.
Fifth – what was Mr I-W’s actual engagement with any ACE transgender staff? How many are there likely to be? Let’s (finally) do some Diversity Maths.
Gender Recognition Certificates issued in the UK are about 500 a year, https://www.gov.uk/government/publications/gender-recognition-certificate-applications-and-outcomes/gender-recognition-certificate-applications-and-outcomes so the government figure of 200,000-500,000 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721642/GEO-LGBT-factsheet.pdf of transgender people seems to be guesswork based on self-identification. Even at the highest estimate, ACE would have about ten trans staff out of 1,000. Was it the role of Ms I-W, Mr H, or any of the Diversity team to actually ask their views?
I ask this question because of the quote “I can’t imagine what my trans and nb [i.e. non binary] colleagues are feeling right now.” Well, why not? Is there no one at ACE who actually speaks to their nb staff, so imagination isn’t necessary. This suggest the their diversity team sees people as concepts or tokens who conveniently fit their politics, rather than actual human beings.
I suggest you check on the ACE website to form your own view – but be careful. A Google search shows we also have an “Arts Council Ireland” and an “Arts Council Northern Ireland” – and they all have different diversity teams. I wonder how diverse they all are.Sixth – it is clear that the HR profession – and especially the CIPD – are making a rod for their own backs here. The CIPD even has a course and exam in “DEI” – although there is no legal definition of DEI, and the course appears to be “DEI experts quoting other DEI experts”. A lot of this content seems to treat employment law as optional. A recent interview with Peter Cheese, https://www.lewissilkin.com/our-thinking/future-of-work-hub/insights/2025/03/05/in-conversation-with-peter-cheese CEO of the CIPD, states “DEI must be anchored in real business outcomes”, and “what is reasonable when it comes to ‘bringing your whole self to work’ in an increasingly polarised environment”. The above events could not have emphasised this more