UK: tribunal rules that ‘anti-woke’ views amounted to a protected belief

A recent tribunal decision has held that an employee’s beliefs about the best way to eliminate racism (that critical race theory, described by him as the ‘woke’ approach to racism, is misconceived and divisive, and that the cause of racial equality is best advanced not through separatism and segregation but by valuing people based on character rather than race) amounted to a protected philosophical belief under the Equality Act 2010.  Although fact-specific and not binding on other tribunals, the ruling does highlight the importance of employers remembering that employees on both sides of controversial topics may benefit from protection of belief under the Equality Act 2010. A nuanced and balanced approach, taking into account the factors set out recently by the Employment Appeal Tribunal in Higgs (discussed here), will be key when dealing with the expression of such beliefs.

To be protected, a belief must be (1) genuinely held, (2) not merely an opinion or viewpoint, (3) concern a weighty and substantial aspect of human life and behaviour, (4) be sufficiently cogent, serious, cohesive and important, and (5) worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others (the Grainger v Nicholson tests). At a preliminary hearing, the tribunal rejected the employer’s arguments that tests 2 and 4 were not satisfied. The judge considered that the claimant’s beliefs were grounded in a philosophical system, having been formulated through extensive reading and backed up by his own lived experience (including as a youth worker in Brixton, and marrying and having children with a Black woman). The fact that his witness statements referred to his beliefs as views or opinions was merely semantics; the beliefs were deeply held and carefully considered and they clearly formed an important part of the claimant’s identity affecting how he lived his life. The tribunal will now proceed to hear his discrimination claim, which concerns his posts on the workplace message board Yammer expressing those views and criticising Black Lives Matter. Some colleagues had found them offensive and complained that the posts promoted racist ideas; the employer had dismissed these complaints but instructed Mr Corby to remove the posts.

In contrast, the employee’s belief that it is unhelpful to view social problems through feminist eyes did not satisfy the test to be a protected belief. His view was based on a very narrow foundation, namely an article made by one feminist which he interpreted as suggesting that high male suicide rates were unimportant, and he was unable to articulate in more detail the basis of his views. The tribunal therefore considered that this was an opinion rather than a philosophical belief.

Anna Henderson
Anna Henderson
Professional Support Consultant, London

UK: EAT provides welcome guidance on proportionality in belief / freedom of expression cases

In Higgs v Farmor’s School, a matter in which this firm acted for the Church of England as Intervenor, the EAT approved new guidance proposed by the Church when deciding whether the actions of employers in restricting the manifestation of a religion or belief and the free speech of an employee would thereby unlawfully discriminate against that employee. In doing so the EAT, again at the request of the Intervenor, gave unambiguous recognition to the foundational nature of the rights to hold and manifest a religion or (protected) belief and of free speech.

The proportionality guidance requires employers to consider a range of factors (see Guidance below) when deciding what action, if any, to take in relation to an employee who has manifested a religion or belief in a way to which either or both of internal or external stakeholders have taken objection. Because the employment tribunal in this case had not applied an appropriate proportionality assessment, Mrs Higgs’ appeal against the original decision was allowed and the case was sent back to that tribunal for them to apply the guidance against the facts they had originally found. It is hoped that this clarification will encourage employers and employees to resolve any differences on these issues at the workplace (i.e. through mediation) rather than in the employment tribunal.

Background

Mrs Higgs worked as a pastoral administrator and work experience manager in Farmor’s secondary school. She is an evangelical Christian who believes that same sex relationships and gender fluidity are both prohibited by the Bible. Mrs Higgs posted certain content in her private Facebook account objecting to the nature of sex education which she felt normalised same sex relationships and gender fluidity. The language of the posts, which was not Mrs Higgs’ own, was later found by the employment tribunal to be “florid and provocative”. A complaint was received (from one of her Facebook “friends” who was a parent at the school) that the posts illustrated that Mrs Higgs was both homophobic and transphobic, and expressed concern at the influence that she could exert over vulnerable pupils. Mrs Higgs denied that she was in fact either homophobic or transphobic, but was suspended and put through a disciplinary process. Mrs Higgs stated that she stood by her views, that she was entitled to express those views (although she admitted that on reflection some of the language used was unfortunate) and reiterated that she was neither homophobic nor transphobic. However, that cut no ice with the school who dismissed her for gross misconduct in breaching its Code of Conduct. Her appeal similarly failed.

Tribunal decision

The employment tribunal accepted that her views constituted a protected religion or belief but found that the school had acted solely because Mrs Higgs would be perceived as holding unacceptable views in relation to LGBTQ+ people. And so the treatment she received was not because of her beliefs but because of that perception of Mrs Higgs’ views, even though she herself denied that the perception was correct. Interestingly, the tribunal also found that a different course of action might have been taken by the school by asking Mrs Higgs to make clear that she wasn’t in fact homophobic or transphobic, but that that factor was irrelevant in the context of a discrimination claim.

Appeal

The Church of England was permitted to intervene in the appeal to make submissions on how the various strands of European and domestic law should be integrated, in the light of policy considerations recognising the need to try to reconcile opposing views at a time when public debate has become increasingly strident, while allowing the expression of those views in an environment of mutual respect and tolerance. Maintaining a neutral stance on the appeal, it was also permitted to propose guidance for the application of a proportionality assessment applicable to the issues in the case. The key purpose of this was to seek to recognise the foundational rights of freedom of religion and belief, and freedom of speech (even speech that “may disturb or offend”), that these rights are based on the core values of pluralism, tolerance and dialogue, and that any limitation of those rights must be strictly proportionate to the aim pursued. Where the assessment was most required was in assessing when objection to a manifestation of a religion or belief and exercise of free speech could be justifiably taken given that the then current uncertainty was creating a “chilling effect” on the exercise of those rights. The Intervenor had set out various factors to be taken into account, including – importantly – whether a less intrusive approach could have been taken by the employer.

In its decision the EAT (given by the President) held that the tribunal had not focussed on the clear connection between the Facebook posts and the need to decide if the school’s concerns arose out of Mrs Higgs holding the views she held, or purely the objectionable manifestation of them. By focussing on the school’s views of the posts it had impermissibly narrowed its task. It thereby failed to recognise the “foundational nature of those rights for any democracy” and failed to “carry out the requisite balancing exercise” when assessing the school’s response. Specifically, it “failed to carry out any assessment of the proportionality of the [school’s] actions and whether, in particular a less intrusive response to dismissal would have been proportionate.”

That was sufficient for Mrs Higgs’ appeal to be successful and for the matter be sent back to the Employment Tribunal for it to apply the proportionality guidance to the facts it had found. However, the EAT acceded to the Intervenor’s request (agreed by the school but objected to by Mrs Higgs) that “more general guidance should be provided, not only to assist the tribunal in carrying out the proportionality assessment required, but to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs.”

Guidance

While recognising that all such cases were to an extent fact-specific, the EAT approved the following approach to be applied in the workplace:

  1. The foundational nature of the rights (“essential in any democracy”) must be recognised “whether or not the belief in question is popular or mainstream and even if its expression may offend”.
  2. The manifestation of the belief and free expression may be limited to the extent necessary to protect the rights and freedoms of others.
  3. The employer must be clear that its objective is sufficiently important to justify the limitation of the particular right, that the limitation is rationally connected to it, whether a less intrusive limitation might be applied and whether, balancing the severity of the limitation on the rights of the employee against the importance of the objective, the former outweighs the latter.
  4. In answering these questions the following considerations are likely to be relevant:
    • the content of the manifestation;
    • the tone used;
    • the extent of the manifestation;
    • the employee’s understanding of the likely audience;
    • the nature and extent of the intrusion on the rights of others and any impact on the employer’s ability to run their business;
    • whether the employee has made clear that the views expressed are personal or whether they might be seen as representing the views of the employer;
    • whether there is a potential power imbalance given the nature of the employee’s role and that of those whose rights are intruded upon;
    • the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
    • whether the limitation imposed is the least intrusive measure open to the employer.

Implications

The publicity around this decision focussed on the fact that a Christian had won their case despite holding views that can be thought to be unacceptable to a significant number of people. The fact that this followed successful claims by Maya Forstater and Alison Bailey in the employment tribunals in similar circumstances could indicate that the tide is turning in favour of the recognition of the rights to hold religion and belief and the right of free speech. Further support for such an approach can be found in the unequivocal recognition by the President of the EAT of the essential nature of these rights.

However, the real significance of this decision is the guidance approved by the EAT. This indicates the complexity of many cases where employees wish to express unpopular beliefs and the need for employers to take a measured approach rather than simply seek to respond to those who may object to that expression. Similarly, it will clearly no longer be sufficient for tribunals in such cases simply to say that the employer would have taken the same responsive action against anyone who had acted in a similar generic way to the employee (eg by breaching a code of conduct) thereby purportedly negating the necessary causal factor between the religion or belief and the action of which complaint is made. Such an approach fails to recognise the importance of the underlying rights and the need for the response to be proportionate.

Most importantly the EAT clearly intended that this guidance would give welcome clarification both to employees not daring to manifest their religion or belief in any way for fear of repercussions, and to employers to understand better how they should respond to complaints about the expression of religion or belief. Now that the nuanced nature of the required balancing exercise has been made clear the real hope is that employers and employees can now resolve any disputes in the workplace rather than in the employment tribunal. Indeed, given the fact that the employment relationship will ordinarily still be continuing, this would be a paradigm case for workplace mediation.

Higgs v Farmor’s School (EA-2020-000896-JOJ)

 

Peter Frost
Peter Frost
Consultant, London
+44 20 7466 2325
Chris Jones
Chris Jones
Senior Associate, London
+44 20 7466 2761
Josh Peters
Josh Peters
Associate, London
+44 20 7466 2325

UK: tribunal rulings extend scope of protected philosophical beliefs

Employers should keep a watchful eye on the steady stream of cases challenging the boundaries of the protection for philosophical and religious beliefs.  Employee activism and use of social media mean the potential for a clash of opposing beliefs in the workplace will only increase; a considered, sensitive response that does not take sides will be key to avoiding claims.  Employers may also wish to consider or review staff policies on expressing views on social media and in the workplace.

  • Recent rulings in Forstater and Mackereth have established that gender-critical beliefs can be protected beliefs, including a limited right to express those beliefs (whereas objectionable manifestations such as intentional misgendering will not be protected) – see here.  A first instance tribunal in Bailey v Stonewall Equality, Garden Court Chambers and others has now ruled that the protection extends beyond the core gender-critical belief (that women are defined by biological sex rather than gender identity) to also cover a belief that gender theory as promoted by Stonewall is severely detrimental to women (including that it denies them female-only spaces) and to lesbians (in that it labels them as bigoted for being same-sex attracted).  Expressing hostility to Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others in a way that would not be worthy of respect in a democratic society.  Garden Court Chambers’ knee-jerk reaction to complaints about the claimant’s gender-critical comments, tweeting that it would launch an investigation and subsequently concluding that she had likely breached Bar Standards, was held to be unlawful belief discrimination.
  • In contrast, in McClung v Doosan a first instance tribunal rejected a claim that supporting Rangers football club could be a protected philosophical belief.  A desire that a particular team do well did not concern “a weighty and substantial aspect of human life”, the variety of fan behaviour meant that there was insufficient cogency, cohesion and importance to the belief, and it did not invoke the required degree of respect in a democratic society.  (The claimant did not seek to bring a religious discrimination claim.)
  • In Scottish Federation of Housing Associations v Jones  the claimant’s employment contract included a political neutrality clause and she was dismissed after having requested (and been denied) permission to stand as a candidate for a political party in the general election. She claimed unfair dismissal on the ground of her political opinions or affiliations (which does not require the usual two years’ service) and belief discrimination.  The EAT held that the dismissal allegedly for refusing to comply with a political neutrality requirement was not ‘related to’ her political opinions or affiliation to a political party;  the unfair dismissal legislation was intended to cover dismissals because of the content of a person’s political opinions or the identity of the party they support, and not because of a lack of neutrality.  However, the claimant’s belief that ‘those with the relevant skills, ability and passion should participate in the democratic process’ if democracy is to thrive was a protected philosophical belief for the purposes of a discrimination claim.
  • In Wierowska v HC-One Oval, the tribunal ruled at a preliminary hearing that a care-home worker’s opposition to the Covid vaccine was sufficiently closely linked to her longstanding Catholic beliefs to be a protected religious belief, notwithstanding the Pope’s statement that having a vaccine was morally acceptable.  There is no requirement for a religious belief to be part of the mainstream or orthodox view taken by a particular religion in order to be protected.  Her concerns were linked to the longstanding Catholic position on abortion and the medical use of stem cells or foetal material and were part and parcel of a fundamental view about the sanctity of human life. She also believed that the vaccine might alter her blood cells which would be contrary to her religious belief that the body is the temple of the Spirit and should remain unadulterated.  Her ‘stubbornness’ in rejecting medical evidence on this only went to support the argument that she held a religious belief which was not open to debate.

 

Anna Henderson
Anna Henderson
Professional Support Consultant, London

UK: protection for ‘beliefs’ may cover a limited right to express a belief, but not misgendering vulnerable clients

Two cases this month illustrate the challenges employers face in relation to employees expressing or manifesting beliefs on sensitive topics which have the potential to upset or cause offence to colleagues.  Previous case law has established that the potential for offence will not prevent philosophical beliefs from being protected within the Equality Act, with the limited exception of beliefs akin to espousing Nazism or totalitarianism (see here).  The focus then shifts to whether an employee’s expression or manifestation of their belief is to be treated as indissociable from the belief, so that detrimental treatment on those grounds falls within direct discrimination provisions and therefore cannot be justified, or alternatively falls within the indirect discrimination provisions where treatment can potentially be justified.

Difficult questions can arise as to which limb applies to different belief-based actions, whether it be explaining one’s belief to others in various ways (on ‘private’ social media or in the workplace, proactively or responsively, in an attempt to persuade others to agree or in furtherance of a belief in the duty to proselytise), or refusing to say words or endorse messages which conflict with the belief, or adopting certain behaviours or customs for example in relation to dress, food or prayer.

Most of these types of action have been viewed as separable from the belief itself, such that employer prohibition or discipline for the action is treated as a policy applicable to all employees but which potentially indirectly discriminates against those holding the belief. The issue then becomes whether the policy is justified as a proportionate means of achieving a legitimate aim.  This was the analysis in Mackereth v DWP, where the EAT held that the employee’s refusal to use a trans service-user’s preferred pronoun was a manifestation of his gender-critical belief which could be distinguished from the belief itself.  The employer’s response to it was therefore potential indirect discrimination, capable of justification.

On the facts, the employer’s policy, of requiring those who were meeting and assessing trans service-users for disability benefits to use their chosen pronouns, was justified.  The policy was no wider than necessary as it only covered employees’ dealings with trans service-users, it avoided a potentially significant adverse effect on the users (given that the reason for being assessed was likely to be that they were suffering from a mental health condition such as depression, which would likely be exacerbated by a failure to use their chosen pronoun), and the employer looked for alternatives to accommodate the claimant but found there to be no practicable alternatives (as it would often not be possible to identify trans service-users in advance of the appointment).  Notably the claimant was not able to argue that he should have been allowed to use a trans service-user’s preferred name instead of a pronoun as he had not argued this before the tribunal.

In Maya Forstater v CGD Europe the tribunal upheld claims that CGD’s decision not to offer the claimant full employment and renew her Visiting Fellowship was unlawful direct belief discrimination following her expression of gender-critical views on Twitter.  It rejected the argument that direct discrimination only covers detriment because an individual (mutely) holds a particular belief and that any expression of the belief should fall within the indirect discrimination limb.  Instead, the tribunal concluded that direct discrimination would cover treatment both because of holding the belief and also for manifesting it in a way to which objection could not be justifiably taken.  A mere straightforward statement of a belief cannot be inherently unreasonable or objectionable, otherwise in reality protection for belief would be meaningless.  Something more than merely stating the belief will be required before the expression can be seen as unreasonable or objectionable and outwith direct discrimination protection.

In this case, the tribunal concluded that the claimant’s expression of views stayed the right side of the line, in the context of an employer which was a “think tank” with no social media policy and where vigorous debate was the norm.  The claimant’s tweets included that “trans women are male” and that a “man’s internal feeling that he is a woman … has [no] basis in material reality”.  She had also criticised the inclusion of a gender-fluid individual, whom she described as a “part-time cross-dresser”, in a ‘women in business’ list and had made available materials supporting a campaign against sex self-ID legal reform.  However, she had also made clear that she was happy to agree to disagree with others, that she would use preferred pronouns so as not to hurt anyone’s feelings, and she was willing to include a disclaimer on her twitter handle to clarify that the views were her own.  The tribunal considered that most of the claimant’s tweets were simply statements of her belief and that the tweets mocking views opposing her own were sufficiently mild not to be objectively unreasonable, given that mockery or satire is “part of the common currency of debate”.

The Forstater ruling is at first instance only and so not binding. Further case law  will be needed to clarify what factors are relevant when determining if objection could justifiably be taken to an expression of belief.  This is likely to be forthcoming in the not too distant future – Dr Mackereth has indicated that he will appeal, and the EAT is also due to consider similar issues in Higgs.

Update: the Court of Appeal refused permission to appeal the decision in Mackereth in February 2023.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London

UK: no protection for belief in moral obligation to break the law

Over recent years there has been a steady flow of tribunal cases testing the boundaries of the protection for beliefs under the Equality Act.  Case law has established a clear test: to be protected a belief must be (i) genuinely held, (ii) not merely an opinion or viewpoint based on the present state of information, (iii) as to a weighty and substantial aspect of human life and behaviour, (iv) attain a certain level of cogency, seriousness, cohesion and importance, and (v) worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.  How these tests should be applied to an individual’s specific beliefs is sometimes less obvious, but can be critical for employers given the lack of a cap on compensation, and of any service requirement, for discrimination claims.

One area of developing case law has concerned vegetarianism / veganism. The claimant’s ethical veganism in Casamitjana Costa v League Against Cruel Sports was held to be a protected philosophical belief given the extent to which the claimant adjusted his lifestyle to reflect his beliefs (see here), whereas an individual’s more limited vegetarian beliefs were not protected in Conisbee v Crossley Farms on the particular facts.  The latest tribunal case in this area, Free Miles v The Royal Veterinary College, establishes that an ethical veganist belief that there is a moral obligation to take unlawful steps to prevent or reduce the suffering of animals cannot be worthy of respect in a democratic society and so fails test (v).  The tribunal commented that laws are made by democratically elected representatives and it is not open to individuals to decide which laws are unjust and can be disobeyed; any belief that advocates or makes unlawful actions obligatory is not worthy of respect in a democratic society. Had the belief been limited to a moral obligation to take lawful action, this might have been protected.

The tribunal accepted that the more limited ethical veganist beliefs held by the claimant (that humans should not eat, wear, use for sport, experiment on or profit from animals) were protected, but her actions in trespassing on property and stealing animals were not sufficiently closely connected to those protected beliefs to be a manifestation of them. Further, even if the actions were sufficiently connected to the protected beliefs, they were an objectionable or inappropriate manifestation of those beliefs and therefore to be treated as dissociable from the beliefs (so that dismissal for this reason is not unlawful direct belief discrimination).  Equally, even if dismissal for her unlawful actions indirectly discriminated against those holding the more limited, protected beliefs, such a policy was objectively justified given the employer’s need to maintain good relationships with food producers, abattoirs and animal-based research facilities in order to promote animal welfare standards.

 

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London

UK: fear of catching Covid-19 on returning to workplace is not a protected belief

An employment tribunal has ruled that an employee’s fear of catching Covid-19 and desire to protect herself and her partner, which was the reason she refused to return to the workplace on 31 July 2020, was not a ‘protected belief’ for discrimination purposes.   Previous caselaw has established that an opinion or view based on the present state of information available will not qualify as a ‘belief’ that can be protected, and the tribunal concluded that the claimant’s concerns failed on this point: the tribunal considered that it was a widely held opinion that attending a crowded place during the height of the current pandemic would increase the risk of contracting Covid-19 and might therefore be dangerous.  A fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief. (X v Y)

This decision highlights that employees disciplined because they are reluctant to return to work due to Covid-related fears are unlikely to be able to bring belief discrimination claims.  However, they could well have other avenues of claim, for example if they can show they raised valid concerns about the inadequacy of workplace safety measures and/or that they are or live with a disabled person who is more vulnerable to COVID.  Employers looking to encourage reluctant returners should seek to reassure staff and engage with concerns raised.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

 

UK: ECJ rules that ban on all visible forms of expression of belief could be lawful in some limited circumstances

The European Court of Justice has ruled that employers may be able to justify a ban on all visible forms of expression of belief in some circumstances.  A ban will not be directly discriminatory on the grounds of a particular belief provided it is applied generally and without differentiation (notwithstanding that those employees whose beliefs oblige them to wear certain items will be more inconvenienced than others who simply wish to wear a sign of their particular belief).  However a ban could be indirectly discriminatory unless the employer can show that is justified as being a proportionate means of achieving a legitimate aim.  In two German cases, the Court ruled that a policy of neutrality or to prevent social conflicts in the workplace could potentially be a legitimate aim, provided the employer can show that this meets a genuine need taking account of the rights and legitimate wishes of customers/users as well as the adverse impact to the employer of not having such a policy, given the nature of its activities and the context in which they are carried out.  The policy would also need to:

  • be appropriate for the purpose of achieving the aim pursued and limited to what is strictly necessary;
  • be applied in a consistent and systematic manner and include all visible signs of any political, philosophical or religious beliefs (not just those that are large); and
  • be limited to employees whose roles involve contact with the customers/users (or, presumably, interaction with other employees if relying on the aim of preventing workplace conflict).

In WABE v IX the employer ran non-denominational daycare centres and imposed a policy of neutrality of dress and expression with the aim of ‘guaranteeing the free and personal development of children as regards religion, belief and policy’, following the recommendations of the City of Hamburg for the education of children in daycare facilities. The ECJ noted that parents could have legitimate rights to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs or conversely to have their children supervised by persons who do not manifest their religion or belief when in contact with the children, to avoid potentially influencing them.  WABE’s policy applied to all visible signs and only to staff in contact with parents/children, and therefore could potentially be justified (although this will be for the national court to determine on the facts).  The Court distinguished this from the situation where an employer was simply acceding to discriminatory requests from a customer, which would not be lawful.

In the joined case of Müller v MJ, the ECJ accepted that the desire to prevent conflicts between employees arising from their different religions and cultures could be a legitimate aim where such conflicts had occurred in the past.  However, in that case, the ban was only on conspicuous, large-sized signs of belief and so was likely to be both unlawful indirect discrimination (as the partial ban would not have achieved the aim of neutrality) and might also be direct discrimination (given it would have a greater effect on people with beliefs requiring the wearing of a large-sized sign such as a head covering and so be based on a criterion inextricably linked with a particular religious belief).

As a result of Brexit this ruling is not binding on UK tribunals but they could have regard to it where relevant.  Some press coverage has suggested that the ruling gives employers the green light to sack women wearing headscarves simply by claiming to have a policy of neutrality.  This is a significant over-simplification: an employer will only be able to rely on such a policy if it can meet the prescribed conditions set out above, in particular that the policy meets a genuine need of that particular employer and is strictly necessary.  It is only the legitimate wishes of customers that will be relevant (along with the impact on the employer of not adopting the policy, balanced against the impact on the employees) and this does not amount to free rein for employers to simply accede to the discriminatory prejudices of customers.  The ECJ did not hold that the employers’ policies were justified in those cases, rather that they could potentially be justified depending on the national court’s assessment of the facts.   It is true that the the ECJ seems to have accepted that parents have a legitimate right to have their children supervised by persons not manifesting beliefs when in contact with the children, presumably on the assumption (which is not universally accepted) that a carer or teacher manifesting their own belief through dress (or observance of ritual) has the potential for influencing the beliefs of young children and inhibiting the free development of those beliefs.  But this is a discrete type of employer and the German courts will still need to determine whether there was a genuine need on the facts; the age of the children may be one relevant factor in determining whether the need is genuine.  The decision does not mean that any employer who perceives that their customers would prefer only to deal with neutrally-attired employees will be able lawfully to impose a neutrality requirement.

In reality, the types of employment where such a policy will actually be justified on the facts may be few and far between (at least in the UK, where there is no constitutional principle of secularism which might justify restrictions in public sector jobs as in France or Belgium).  The Equality and Human Rights Commission’s 2018 guidance notes that “it is very unlikely that an employment tribunal in the UK would accept ‘demonstrating neutrality’ as a legitimate aim capable of justifying a policy which banned all religious symbols or dress”, pointing to the decision of the European Court of Human Rights in Eweida v British Airways holding that the prohibition on wearing a discrete cross pendant was unlawful.  BA’s desire to project a certain corporate image was a legitimate aim, but there was no evidence that employees’ wearing of authorised items of religious clothing, such as turbans and hijabs, had a negative impact on BA’s brand and the fact that BA had subsequently amended its uniform policy to allow symbolic religious jewellery demonstrated that the adverse impact on the employer of not having the prohibition was small.  In other words, BA had failed to establish a genuine need for requiring a neutral image.  This is likely still to be the case for most employers.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

UK: EAT rules that beliefs can be protected even if offensive to some, but manifesting those beliefs may be unlawful

The EAT has ruled that a philosophical belief will only lose protection under discrimination law if it is the kind of belief akin to espousing Nazism or totalitarianism.  The fact that a belief is offensive, shocking or even disturbing to others will not prevent it from being a protected belief.  Treating the holder of a protected belief less favourably, simply because they have that belief, is unlawful.  However, this does not change the position with regard to manifesting beliefs: if an individual chooses to manifest their belief in a way that amounts to discrimination or harassment of others, this remains unlawful and an employer should continue to take reasonable steps to prevent such behaviour.  The practical implications of the ruling for employers are discussed below.

The case of Maya Forstater v CGD Europe concerned what are commonly described as gender-critical beliefs.  According to the judgment, the claimant (Maya Forstater) holds the belief that biological sex is real, important, immutable and not to be conflated with gender identity. She considers that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not expressions of antipathy towards trans people or “transphobic”. She believes that it is not “incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender”. She would usually seek to respect a transgender person’s choice of preferred pronoun in social and professional contexts but considers that it is appropriate in some contexts to refuse to do so.  Some of her colleagues at CGD found her statements about the issue on Twitter offensive and complained, leading to the non-renewal of her consultancy contract.

Previous case law (Grainger plc v Nicholson) has established that a belief will be a protected belief for discrimination law purposes if it satisfies a number of criteria: the belief must: (i) be genuinely held, (ii) be a belief rather than an opinion or viewpoint based on the present state of information available, (iii) concern a weighty and substantial aspect of human life and behaviour, (iv) attain a certain level of cogency, seriousness, cohesion and importance, and (v) be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

The first instance employment tribunal ruled that the claimant’s belief failed the fifth criterion, being not worthy of respect in a democratic society.  The EAT disagreed.  It referenced the European Convention on Human Rights and associated caselaw which has established that only the gravest forms of hate speech should not be protected.  The EAT’s reasoning centred around the importance of freedom of belief, pluralism, tolerance and freedom of expression as the cornerstones of a liberal democracy, and noted that the freedom of belief includes the freedom to be wrong and the freedom to believe things that others may find shocking or offensive.  It also noted that particular care should be taken before condemning widely shared beliefs as not worthy of respect, all the more so where those beliefs are consistent with the law.  Currently the Gender Recognition Act provides for gender reassignment for official legal purposes but does not require individuals to recognise an acquired gender in other contexts nor to believe something that they do not. The EAT considered that the employment tribunal had erred in viewing the “absolutist” nature of the belief as relevant to deny protection and in failing to appreciate the nuance in the claimant’s position as to when she would misgender trans persons.  It clarified that manifestation should not be the focus of enquiry at the preliminary stage of deciding whether a belief is protected, and is only relevant to the extent it plays a part in determining whether the belief satisfies the Grainger criteria, eg in establishing the cogency or cohesion of the claimant’s belief.

Individuals are also protected from discrimination because of a lack of belief.  The EAT ruled that the employment tribunal was wrong to suggest that the lack of belief has to satisfy the Grainger criteria;  if the belief satisfies the criteria, then discrimination because of a lack of that belief (for example, due to not thinking about the issue or being undecided) is also unlawful.

It has been reported that CGD has said it will not appeal the EAT’s decision on whether the belief itself was protected;  the case will therefore return to the employment tribunal to determine whether there was unlawful discrimination because of or related to the belief.

Update July 2022: the employment tribunal has now upheld Ms Forstater’s complaints of direct belief discrimination and harassment on the facts, rejecting arguments that a distinction could be drawn between the beliefs and the claimant’s engagement on Twitter in a debate on a matter of public interest.  In contrast, in Mackereth v Department of Work and Pensions the EAT ruled that the tribunal had erred in concluding that gender-critical beliefs were not protected, but had not erred in distinguishing the beliefs from the claimant’s manifestation of them (the claimant was a health and disability assessor who refused to address transgender service users by their chosen pronouns) and therefore finding his dismissal for the manifestation not to amount to unlawful discrimination. Dr Mackereth has indicated he intends to appeal.

 

Implications for employers

The ruling is important in clarifying the broad potential scope of protected beliefs (not confined to beliefs on transgender issues).  As the EAT recognised, this decision means that very few beliefs will fail to meet the fifth Grainger criterion.

In relation to transgender issues, both gender-critical and gender-theory beliefs will be protected beliefs. The challenge for employers will be in identifying when manifestation or expression of those beliefs amounts to discrimination or  harassment for which it is appropriate to discipline staff.  This could be discrimination or harassment related to having a particular belief or related to gender identity (bearing in mind that, although only around 1% of the UK population is thought to be transgender or non-binary according to Stonewall, in some cases gender identity-related comments could create an offensive work environment for colleagues regardless of their own gender identity).

A persistent refusal by an employee to use a transgender employee’s preferred pronouns with the intent or clear effect that this causes offence would clearly fall on the wrong side of the line.  Staff should be asked to use preferred pronouns as a simple matter of courtesy.  Requiring all staff to specify their preferred pronouns in email footers, rather than making it voluntary, could amount to discrimination against those with gender-critical beliefs.

Less straightforward will be the situation where non-transgender employees consider that a colleague’s expression of gender-critical beliefs, perhaps in response to news items, is offensive; the way in which they respond could then create an intimidating work environment for those holding the gender-critical beliefs.  Similar situations could of course arise based on other protected characteristics.  The expression of beliefs, or of lack of support for a belief, in discussions at the workplace or on social media will not necessarily amount to discrimination or harassment of those holding conflicting beliefs, and therefore to discipline the speaker may itself be discriminatory.  Much is likely to depend on context: were the views expressed in a respectful, measured and non-provocative manner; what guidance (if any) did staff policies contain in relation to the discussion of views in the workplace; were the views expressed on a private social media account or in an open forum at the workplace;  was the speaker aware of the actual or potential sensitivity of the issue for a colleague, perhaps because they or a family member are transgender; was the discussion instigated by the speaker or the colleague finding it offensive?  Ideally staff training and policies on the discussion of this and other sensitive topics should address the inherent nuances and seek to encourage understanding and mutual respect of differing views.

 

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

UK: Court of Appeal rules on employer limits on public expression of beliefs

The Court of Appeal has made clear that employers may be able to expect individuals, particularly those holding high profile positions, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. The extent to which limitations are justified will be fact-specific, depending on striking a fair balance between the rights of the individual and the legitimate interests of the employer.

In Page v NHS Trust Development Authority, Mr Page was a Christian magistrate sitting on family cases, who spoke out in public against same-sex couple adoption and his consequent removal from the magistracy.  He was also a non-executive director of the NHS Trust, which had a genuine and reasonable concern that the expression of his views about homosexuality in the national media risked impairing its own ability to perform its healthcare function (including providing services to homosexual people with mental health difficulties).

The Court held that his removal as NED for repeatedly speaking to the media about his views without permission was not unlawful belief discrimination.  He was removed because of the inappropriate manner in which he manifested his beliefs, and not because of his beliefs/their manifestation – the Court accepted that such a distinction can validly be made and therefore there was no direct discrimination. Any indirect discrimination or restriction on human rights was justified in the circumstances, given the Trust’s legitimate concerns, and the claim to victimisation was also dismissed on the facts as the reason for his removal was the public expression of his views and not his allegation that he had been discriminated against.  Permission to appeal was refused.

The Trust was assisted in this case by its clear instruction requiring the individual to seek permission before speaking to the media, which Mr Page repeatedly ignored.  As the Court pointed out, had Mr Page been willing to comply with this policy, it might have been possible to co-operate to find a way to allow him to express his views while also addressing the sensitivities and the consequent potential impairment of the Trust’s ability to perform its core functions.  The position is likely to be different for those in less high profile roles, where there might be no reason to suppose that their expression of their views would have any impact on how the public might engage with the relevant services.

 

 

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

UK: Tribunal rules that belief that gender cannot be fluid is protectable

An employment tribunal has ruled that a Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010. (Higgs v Farmor’s School)

The tribunal found on the facts that the claimant’s beliefs did not involve behaving in a way to gratuitously upset or offend any person, and contrasted this with the beliefs of the claimants in Forstater v CGD Europe and Mackereth v Department of Work and Pensions that they should refer to a person according to their biological sex even if it caused offence; it was this aspect which the Higgs tribunal considered rendered the Forstater/Mackereth beliefs not worthy of respect.

However, on the facts the claimant had not been dismissed from her job as school pastoral administrator because of her beliefs, but because she had breached the school’s conduct policy on the use of social media.  She had reposted articles with inflammatory content on her Facebook page, which was visible to parents of children at the school and which could easily have been circulated more widely as screenshots. She therefore had no reasonable expectation of privacy in the posts, and the school had dismissed her because the posts could reasonably have led readers to believe that she held homophobic and transphobic views and she had made it clear that she did not intend to stop posting.

It is understood that Mrs Higgs intends to appeal the decision;  the EAT is due to hear Forstater in April 2021 and Mackereth has also applied for permission to appeal out of time.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819