Competing protected characteristics in the workplace: where to draw the line?

A clash of rights is always particularly challenging for employers to handle. How should employers balance one employee’s right to manifest their religion or beliefs and freedom of expression with the protection of the rights and freedoms of others? In this blog, we recap the key legal principles regarding protection and expression of beliefs in the workplace, and draw out lessons from a recent case in which the EAT provided guidance to employers on how they should conduct this balancing exercise.

Recap of the key legal principles

• The Equality Act 2010 (EqA) contains nine “protected characteristics” on the basis of which employers must not discriminate against employees. One of those is “religion or belief”, which covers non-religious philosophical beliefs as well as religious beliefs.
• In the absence of clear guidance in the EqA, the courts have defined the boundaries of protection for philosophical beliefs. The leading case confirms that a belief can only qualify for protection if it: is genuinely held; is not simply an opinion or viewpoint based on the present state of information available; concerns a weighty and substantial aspect of human life and behaviour; attains a certain level of cogency, seriousness, cohesion and importance; and is worthy of respect in a democratic society, is not incompatible with human dignity, and is not in conflict with the fundamental rights of others. In assessing whether something is “worthy of respect”, the courts have found that only the most extreme beliefs, such as Nazism, should be excluded.
• Examples of protected philosophical beliefs established by the courts include ethical veganism, gender critical views, and a belief in man-made climate change and the resulting moral obligation to act. (For further discussion on climate-related concerns in the workplace see Katie Fudakowski’s blog here.)
• An employee has the right not to be subject to discrimination because of, or harassment related to, a protected philosophical belief. However, an employer may be able to justify disciplinary action if the way in which a belief is manifested is “objectionable”. This is not an easy distinction to draw; some welcome guidance has been provided by the EAT in the Higgs case, discussed below.

The cost of getting this complicated situation wrong can be enormous. The Claimant in Forstater (a high-profile case about gender critical views) was recently awarded compensation of over £100,000. The hue of Forstater and other cases has made clear that employers must not be too eager to engage in disciplinary action and must respect the views of their employees even if they are unpopular or have the capacity to offend.

Mrs K Higgs v Farmor’s School [2023] EAT 89

Facts

The Claimant was a pastoral administrator and work experience manager at the Respondent. She was dismissed following a complaint about several Facebook posts she had posted or re-posted on her personal account. The posts were critical of the nature of sex education in schools, which she considered normalised same-sex relationships and gender fluidity, and as such threatened the teaching and expression of fundamental Christian beliefs. 

The Claimant alleged direct discrimination because of, and harassment related to, her protected beliefs. The Tribunal accepted that she held various beliefs within the protection of the EqA but rejected her claim for discrimination or harassment. She appealed to the EAT.

Decision of the EAT

The EAT upheld the Claimant’s appeal. It found that the Tribunal had failed to identify that there was a close / direct nexus between the Claimant’s Facebook posts and her protected beliefs – the Facebook posts were a manifestation of the Claimant’s beliefs. That being so, the Tribunal did not properly examine whether the Respondent’s actions were because of or related to that manifestation of beliefs (unlawful) or because the Claimant had manifested her beliefs in a way to which objection could justifiably be taken (lawful). The EAT said that in order to determine whether or not the manifestation is “objectionable” it is necessary to carry out a proportionality assessment, bearing in mind the Article 9(2) right to freedom to manifest religion or belief and the Article 10(2) right to freedom of expression. The significance of this case is not so much that the Claimant won her case despite holding views that many consider offensive but rather the guidance approved by the EAT (see below). The EAT remitted the case to the Tribunal to apply the EAT’s guidance to the facts it had originally found.

Guidlines

The EAT laid down five basic principles that should “underpin the approach” taken when assessing the proportionality of any interference with Article 9 and Article 10 rights:  

• The freedom to manifest belief (religious or otherwise) and to express views relating to that belief are “foundational” and “essential rights in any democracy”, whether or not the belief is popular or mainstream or might cause offence.
• However, these rights are qualified – the manifestation can be restricted to the extent necessary for the protection of the rights and freedoms of others.
• Whether a limitation is justified “will always be context specific”, which means that the nature of the employment will be relevant.
• It will always be necessary to ask: (i) whether the employer’s objective is sufficiently important to justify the limitation, (ii) whether the limitation is rationally connected to that objective, (iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question, and (iv) whether, balancing the severity of the limitation on the rights of the employee concerned against the importance of the objective, the former outweighs the latter.
• In answering those questions, regard should be had to:
  • the content, tone and extent of the manifestation,
  • who the employee thought their likely audience would be,
  • 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.

Key take-aways

1. These cases are complex, and the balancing exercise that employers must undertake is nuanced. Consider whether your decision-makers have the appropriate knowledge and confidence and – if necessary – seek legal advice early on.
2. Take the time to reflect before taking action. You need to ensure you take a measured and proportionate approach. Engaging in a knee-jerk reaction, such as commencing an investigation immediately upon receiving a complaint about the expression of unpopular beliefs, may entrench positions early on and create the act of discrimination at the outset.
3. There is no “one-size fits all approach” and decisions should be taken on a case-by-case basis. The EAT went to great pains to note that every case of this kind is inherently fact-specific, so any decision-makers in your organisation should treat it as such as well – taking into account the guidelines laid down by the EAT.
4. Have clear expectations in your Code of Conduct, including about cultural values and the use of social media. Organisational standards should be clear to all.
5. In investigating or instigating disciplinary action, consider involving a panel of individuals who are non-partisan. Ensuring diversity of viewpoints, and those who are not known for having strong views on the issue at hand, may help to ensure the actuality and appearance of fair process.

With special thanks to Alex Evans, a current paralegal in the employment team, for their contributions to this blog. 

© Farrer & Co LLP, July 2023