ACE harassment claim upheld as victimisation claims dismissed

A court has found a former Arts Council England (ACE) employee was harassed by fellow staff over her gender critical beliefs, while rejecting several other claims of harassment and victimisation.

The judgement in the case between ACE and Denise Fahmy, who had been employed by ACE for more than 15 years before resigning ahead of the tribunal, was published yesterday (26 June). It states claims of victimisation “were not well-founded and are dismissed”, while a claim of harassment related to the protected characteristic of religion or belief “was well-founded and succeeds”.

All judgements were made unanimously, following a tribunal which took place between 18 and 25 May.

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Fahmy raised claims of harassment and victimisation against ACE after questioning why a grant to the LGB Alliance had been withdrawn, during an internal meeting held in April 2022. The grant had been awarded through the Let’s Create Jubilee Fund by the London Community Foundation (LCF).

During the meeting, ACE Deputy Chief Executive Simon Mellor expressed he thought it had been a mistake for the grant to be awarded to the LGB Alliance as it “has a history of anti-trans activity”, which Fahmy disputed.

In May 2022, an ACE employee circulated an email entitled “allies support sheet” to all staff, including a link to a petition criticising the beliefs of Fahmy and any other staff members with gender critical beliefs. The employee was suspended the same day, while the petition remained online for over 24 hours.

The written judgement says the email and petition, which included a comment referring to LGB Alliance supporters as “neo-Nazis, homophobes and Islamaphobes”, “had the purpose and effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant”.

But the courts did not find Mellor’s comments or actions to have crossed the threshold for harassment and did not find any of Fahny’s victimisation claims sufficiently well-founded to uphold.

Responding to yesterday's judgement, an ACE spokesperson told Arts Professional: "We are pleased that the ruling confirmed that two allegations of harassment and two claims of victimisation were not well-founded and were dismissed, and that there was nothing in the judgment to support the accusation of institutional bias."

The spokesperson added ACE is “reflecting on the judgement which upheld two allegations of harassment”.

They said this related to a petition set up by a junior member of staff who no longer works for ACE, and “we note the tribunal’s acknowledgement of steps taken by us to disable the petition and address the incident at the time”.

ACE’s spokesperson added it was not involved in the decision to award or withdraw funding from LGB Alliance. They said the grant was instead suspended by the LCF, which was responsible for awarding Let’s Create Jubilee Fund grants.

Damages awarded

Fahmy will be awarded compensation over the upheld claims of harassment, to be decided at a further hearing.

Court papers show the tribunal indicated damages should be increased by around 10% for ACE’s failure to follow ACAS Code of Practice, when Fahny was refused the right to appeal the outcome of a Dignity at Work complaint she made in response to the internal petition.

On Twitter, Fahmy said she was “delighted to have won my claim of harassment against ACE”.

“Institutions like the Arts Council need to be held accountable when they are biased and enable harassment of gender critical people. I hope my case has woken up leaders in the arts as to what’s going on,” she added.

Fahmy continued by saying she will be asking Culture Secretary Lucy Frazer to “look again” at a complaint that ACE were biased against the LGB Alliance.