Managing competing beliefs in the workplace

Anyone who had the pleasure of entering the workforce when conformity was the norm and the more ‘beige’ your personality, the better you were likely to fare, will similarly relish the current opportunity to bring your ‘authentic self’ to work. However, that new scope for individuality and personality, in a time where the debate around certain topics is becoming increasingly polarised, is not without its challenges. With the general election round the corner, weekly pro Palestine marches, J. K. Rowling taking to X to voice her views once more and the transgender debate raging on, it is hardly surprising that conflicting beliefs within the workforce are becoming an increasing issue.

More and more employers are thus finding themselves stuck in the unenviable position of having to manage these views in the workplace. Balancing these beliefs is no easy feat but it is a challenge that employers need to be comfortable tackling, or they risk opening the proverbial floodgates to employee relations issues, costly discrimination claims and even reputational damage.

In this article, we touch on recent tribunal cases dealing with protected beliefs, as well as some of the guiding principles and practical considerations that employers should bear in mind when considering taking action against an employee who has vocalised their beliefs.

Background

The Equality Act 2010 (the Act) provides the legal framework for protecting the rights of individuals and promoting equality of opportunity for all. The Act specifically offers protection to 9 characteristics (the Protected Characteristics), including Age, Disability and Race. ‘Religion or belief’ is another one of the Protected Characteristics, and this encompasses certain protected philosophical beliefs. For a belief to be ‘protected’, and therefore fall within the scope of the Act, it must be:

• a genuinely held belief, not merely an opinion or viewpoint
• relate to a weighty and substantial aspect of human life and behaviour
• have a certain level of cogency, seriousness, cohesion and importance
• be worthy of respect in a democratic society, and
• not be incompatible with human dignity, nor conflict with the fundamental rights of others.[1]

Tribunals have previously found that ethical veganism,[2] a belief in the sanctity of life, extending to anti-fox hunting and anti-hare coursing,[3] and anti-Zionism[4] are all protected. For my fellow Scots, I’m afraid being a diehard Rangers fan, doesn’t quite cut the mustard[5].

Gender critical beliefs – the belief that sex is biological and immutable and is distinct from gender – has been the subject of a number of recent employment tribunal cases.[6] Some of these cases have resulted in significant financial sums being awarded to the claimants and have attracted widespread media attention, causing reputational damage to the organisations involved. Indeed, in March 2024, Westminster City Council and Social Work England were ordered to pay over £58,000 (which included  damages that were awarded to purely to punish them) to a social worker they discriminated against over her gender critical views.[7]

When can employers take action?

Stripping it back, employees are protected against discrimination because of their protected philosophical belief. If an employer takes action against an employee related to the employee’s manifestation of that belief, that would amount to discrimination. However, if that manifestation is justifiably objectionable, then it would be lawful for the employer to take action against that employee (as it would not amount to discrimination). I think we can all see why it has proved so easy for employers to get wrong in recent years..!

Although we have some limited guidance from the Employment Appeal Tribunal[8] to assist us, what is clear from recent tribunal cases on this topic is that there is no ‘one size fits all’ approach and each case is fact-sensitive. Therefore, whilst we cannot give you hard and fast rules as to what will and will not amount to discrimination in this context, we have set out the process to follow below, together with what questions to ask yourself to determine whether action in respect of an employee’s belief would be lawful or not.

The starting point is recognising that the freedom to manifest a belief and express related views are foundational and essential rights in any democracy – regardless of whether the belief is popular or might cause offence. However, these rights are qualified and (limited) interference is permitted, in so far as the manifestation can be restricted to the extent necessary to protect the rights and freedoms of others.

The next step is to consider the following questions:

• What is the employer’s objective and is it sufficiently important to justify a restriction on the employee’s fundamental rights?
• Is the restriction rationally connected to that objective?
• Is there a less intrusive restriction which would still achieve the employer’s objective?
• When balancing the severity of the restriction on the right of the employee vs the importance of the employer’s objective, does the former outweigh the latter?

In answering the questions above, due consideration should be given to:

• the content, tone and extent of the manifestation,
• who the employee thought their likely audience would be (this often crops up in social media cases),
• the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s business,
• whether the views were expressed as personal or could be seen as representing the views of the employer, and any related reputational risk,
• any potential power imbalance given the employee’s role and the roles 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, and
• whether the limitation is the least intrusive option for the employer.

Pitfalls to avoid

It is essential that employers take a nuanced approach to these types of situations and properly balance any competing interests. It is not uncommon for colleagues to have differing beliefs, some of which may be considered unpopular or offensive, but employers must avoid knee-jerk reactions, particularly where there is pressure (whether internal or external) to take action against employees holding certain beliefs, or to favour one belief over the other.

Employers should have detailed and up-to-date policies in place on equality, diversity and inclusion and anti-harassment and bullying, which should set out clear expectations and guidelines on acceptable behaviour. Social media policies should also contain guidelines on use (e.g. employees not holding themselves out as representing the company).

It’s also vitally important that staff receive training or are otherwise educated on the freedom of expression and protected beliefs and are clear that all beliefs are treated equally. Organisations should ensure that any discussions around beliefs and topical debates are respectful and considerate, and at all times remain professional. This involves senior leaders cultivating an open and transparent culture, where everyone is treated with respect. It may also involve providing training to managers so that they are better equipped to handle situations of conflict and help reach a constructive outcome.

This is a tricky area of law and one which can be costly (financially and reputationally) to get wrong. If you’d like to discuss any of the issues raised in this article or would like us to provide your team with fresh and engaging equality, diversity and inclusion training, please contact Lynsey Blyth.

[1]  Grainger plc and others v Nicholson [2010] IRLR 4.

[2]  Casamitjana Costa v League Against Cruel Sports ET/3331129/18, Reilly v RT Management Bridgeton Ltd: ET/4107984/20.

[3] Hashman v Milton Park (Dorset) Ltd t/a Orchard Park ET/3105555/2009.

[4] Miller v University of Bristol ET/1400780/2022

[5] McClung v Doosan Babcock Ltd and others ETS/4110538/2019

[6] Forstater v CGD Europe and others UKEAT/0105/20, Higgs v Farmor’s School ET/1401264/19, Bailey v Stonewall and others ET/2202172/20, Phoenix v The Open University ET/3322700/21.

[7] Meade v (1) Westminster City Council (2) Social Work England ET/2200179/2022, ET/2211483/2022.

[8] Higgs v Farmor’s School [2023] EAT 89.