From the bitter disagreements been trans rights advocates and gender critical feminists, to protests and counter-protests over differing political views, our culture often seems to be dominated by conflict between diametrically opposed viewpoints.   With social media hugely amplifying the reach of individual opinions, there has never been more scope for conflicts in the wider world to make their way into the workplace, and then into the Employment Tribunal.  

Are there any lessons from recent cases that can help employers minimise the risks of legal and reputational fallout?

What are protected beliefs?

First, employers need to recognise the wide range of views which are “protected beliefs” under the Equality Act 2010, meaning that treating employees less favourably because of their holding or expressing these beliefs is (with some limited exceptions) will be unlawful discrimination.  It’s clear from cases such as that of Maya Forstater and David Miller that views which others find offensive may well be protected under the law – including strict religious beliefs.

The Forstater case famously established that gender-critical beliefs can be protected under the Equality Act, while in the Miller case the Claimant’s anti-Zionist belief was held to be protected.   Both viewpoints are the subject of intense controversy, with a fierce debate about at what point they shade into unacceptable prejudice.

The cases demonstrates that employers cannot assume that beliefs which offend their customers or staff, or which seem to be at odds with their corporate values or diversity policies, will not be protected under the law – it is only the most extreme views which will be excluded from protection on the basis that they conflict with the rights of others.

The ‘Objectionability test’

Second, employers need to understand that it is not just the holding of a belief which is protected, but also the expression of that belief – providing that the belief was not expressed in a way to which objection could reasonably be taken.   And the test for “objectionability” is a tough one – it has to be such that restricting that expression of belief is necessary to protect the rights and freedoms of others.  It’s not enough that others might be offended by it.  So employers need to recognise that many expressions of belief, even those which are sarcastic or blunt, or which result in complaints from staff or customers, may nevertheless be protected under discrimination law.

For example, Maya Forstater described Pips Bunce (a senior Credit Suisse executive who identifies as non-binary and genderfluid) as a “part-time cross dresser”.   Two of the three-member Tribunal panel found that this tweet was not objectively inappropriate or objectionable in the particular context, and so would be legally protected. In our experience many employers would have felt uncomfortable with a member of staff expressing themselves in this way and would have considered disciplinary action;  the law in this area is sometimes counter-intuitive for employers who have absorbed the message from discrimination law that language needs to be chosen with care.

When a belief is protected, and the way in which it is expressed doesn’t meet the “objectionability” test, employers need to tread carefully, as any less favourable treatment which is because of that expression of belief will be direct discrimination, to which there is no defence of justification (unlike indirect discrimination).   It follows that employers should not assume that they are entitled to take action against employees whose beliefs or statements offend other staff, even where those beliefs or statements are seen as discriminatory in themselves or appear to conflict with the employers’ stated values.

For example, an employee who states on social media that gay relationships are immoral and prohibited by the Bible is likely to upset many of their colleagues, and an employer which takes LGBTQ rights seriously may well want to take disciplinary action as a result – but doing so is likely to result in a discrimination claim.  Often such claims are supported by religious organisations or crowd-funding, enabling claimants to pay for legal representation that might otherwise be out of their reach.

Employers need to take a measured approach:  the mere fact that an expression of a religious (or other protected) belief might appear to conflict with the principles of their diversity policy doesn’t mean that dismissal or other disciplinary sanctions will be legally justified.   The key questions for employers are whether the expression of a belief infringes the rights of other individuals and whether the action the employer intends to take is necessary and proportionate in order to protect the rights of those individuals.  If disciplinary action is taken, the decision-maker should set out their findings on these issues in the outcome letter, to demonstrate why any disciplinary sanction was needed.

Internal company culture 

Finally, employers need to be very careful about the internal culture they create and how they handle disputes between employees which concern protected beliefs.    In recent cases involving the Arts Council and Open University, internal campaigns by other staff (a petition and public letter respectively) were deemed to be acts of harassment because of a protected belief, for which the employers were liable because of their failure to protect the claimants from such treatment.

Employers need to make it clear in their internal policies, and in their response to complaints, that staff need to respect each other’s freedom of expression, even when they profoundly disagree with the views expressed, and that disciplinary action is a decision for the employer, not one to be demanded by mob rule.

Employers shouldn’t allow a clash of views to descend into public bullying of an individual, as the Employment Tribunals have made it clear that this is likely to lead to substantial compensation being awarded.

The future

At present, the law on belief discrimination presents employers with very difficult questions to grapple with, with unpredictable outcomes in the Employment Tribunals.  Surprisingly, although employment law looks set to be a hot topic in the General Election campaign, the main parties have not made explicit proposals for reforming the law in this area.  However, with one of the key cases in this area (Higgs v Farmor’s School) set to be considered by the Court of Appeal this year, it appears likely that employers will have further guidance from the courts.

Some commentators think it likely that the Court of Appeal will take the opportunity to overhaul this whole area of law on the grounds that it has taken a wrong turn.  Whatever the outcome, employers will need to pay it close attention.