Protected beliefs in the workplace: recent tribunal cases

One of the challenges facing employers is how to navigate the expression of protected beliefs in the workplace, particularly where the belief conflicts with other protected characteristics. We most recently wrote about this issue in relation to the case of Higgs v Farmor’s School last year. Since then, there has been a raft of judgments in cases involving protected beliefs. Continuing the theme arising from previous cases, the key takeaway is that employers’ responses to the expression of protected beliefs must be nuanced and proportionate and must avoid knee-jerk reactions. We summarise the recent cases below. In all of these cases, the employer’s response was found to constitute unlawful discrimination. 

Key legal principles

The key legal principles in relation to protected beliefs are summarised in our article on Higgs, which can be accessed here. Importantly, an employee has the right not to be discriminated against because of, or harassed in relation to, a protected belief. Holding protected beliefs is protected, as is manifesting the belief, provided the way in which a belief is manifested is not “objectionable”. This is not an easy distinction to draw, and in Higgs the Employment Appeal Tribunal provided welcome guidance on the principles to be adopted when assessing the proportionality of employer interference in cases of conflicting protected characteristics in the workplace (see the article linked above). It has been established that even offensive beliefs are capable of protection under the Equality Act 2010.

Recent cases

Denise Fahmy v Arts Council England (ACE)

Facts: the claimant held gender critical beliefs, which the Tribunal summarised as belief that sex is biological and immutable, people cannot change their sex and sex is distinct from gender identity. Gender critical beliefs were found to be protected under the Equality Act 2010 in the case of Forstater v CDG Europe & Others.

During an internal meeting, the claimant questioned why a grant to the LGB Alliance had been retracted. In response, the Deputy Chief Executive of ACE said that the LGB Alliance had a history of anti-trans activity and that it had been an error for the grant to be awarded. The claimant challenged this view during the meeting. Shortly afterwards, an employee of ACE circulated a petition via email to all staff, which criticised gender-critical beliefs and included comments from various employees of ACE including referring to “openly discriminatory transphobic staff”. The employee who circulated the petition was suspended on the same day, but the petition was online for 26 hours. The claimant raised a complaint under the whistleblowing policy and dignity at work policy.

Decision: the harassment claim was successful. ACE was liable for the action of the employee behind the petition and was not able to rely on the defence that it had taken reasonable steps to prevent the harassment. An uplift to compensation was awarded for an unreasonable failure by ACE to provide a right to appeal the outcome of her complaint.

David Miller v University of Bristol

Facts: the claimant, a professor, believed that Zionism is “inherently racist, imperialist, and colonial” and is offensive to human dignity. A complaint was raised by students following comments he made which blamed certain “Zionist” organisations for causing Islamophobia. The University commissioned an independent investigation, which concluded that there was no disciplinary case to answer. Further complaints were made following comments by the claimant about Israel and Zionism and his criticism of the University’s Jewish Society. A further investigation was commissioned which concluded that his comments, while offensive to many, had not exceeded the boundaries of acceptable speech and were not antisemitic or discriminatory. It was, however, found that there was a disciplinary case to answer for potential breach of University policies. Following a disciplinary process, it was concluded that the claimant’s conduct constituted gross misconduct and he was dismissed without notice.

Decision: the claimant’s belief was protected and claims for direct discrimination, unfair dismissal and wrongful dismissal (due to the failure to pay notice) succeeded.

Joanna Phoenix v The Open University

Facts: the claimant was a professor of criminology at the Open University and held gender critical beliefs. She co-founded a research network promoting gender critical research, in response to which colleagues published an open letter signed by 368 academics accusing the network of being transphobic and calling for it to be shut down. The University did not shut down the network, but it also did not sufficiently protect the claimant’s mental health (which deteriorated as a result of her experience) and reputation. The University published a statement expressing concern about the harm being caused to trans people but did not acknowledge harm to members of the research network (including the Claimant). It also refused to remove public statements which described the network as a hate group and the claimant as transphobic. The claimant raised a grievance. The University failed to investigate potential breaches of its social media policy or consider disciplinary action against the alleged perpetrators, and after the Claimant had resigned it terminated the grievance process.

Decision: claims for direct discrimination, harassment, constructive unfair dismissal, wrongful dismissal and post-employment victimisation (in respect of termination of the grievance process) were successful.

Rachel Meade v (1) Westminster City Council and (2) Social Work England

Facts: The claimant holds gender critical beliefs and worked for the Council. Social Work England (SWE) is her regulator. She shared gender critical views on her private Facebook page (which was accessible by 40 friends, a small number of whom were colleagues). A complaint was made by a colleague who alleged that her posts were transphobic. The Council referred the complaint to SWE for investigation and suspended the claimant for a year while the investigation continued. This resulted in a year-long final written warning which was published on the public register (this was subsequently withdrawn following her appeal).   

Decision: claims for harassment were successful.

Key takeaways

• The takeaways in our article on Higgs from last year remain relevant. These cases are complex, risk discrimination claims and, as demonstrated by the cases above, are difficult for employers to get right.
• Avoid knee-jerk reactions, maintain a nuanced and proportionate approach (in line with the approach in Higgs) and take advice at an early stage if needed. Do not assume that the fact that people are offended by the views in question means that those views are objectively offensive. Disciplinary action for an objectionable manifestation of protected beliefs will need to be proportionate.
• If you do find that disciplinary action is warranted, consider whether a less severe sanction is appropriate. In dismissal cases, consider whether there’s an alternative sanction short of dismissal and, if not, whether dismissal should be with notice or without (the most severe sanction).
• Where there’s a conflict between rights, avoid taking “sides” and provide support to those on both “sides” of a controversial issue.
• The costs of getting it wrong can be significant. To illustrate, a decision on remedy has recently been made in the Meade case, with the Tribunal ordering the Council and SWE to pay the claimant a total of £58,344 in compensation for injury to feelings and aggravated damages. This also includes £5,000 for exemplary damages which are awarded against SWE. The remedy judgment states that exemplary damages are “reserved for the most serious abuses of governmental power” and are intended to punish “conduct that is oppressive, arbitrary or unconstitutional”.
• The context in which the views are being expressed is likely to be relevant. It’s noteworthy that two of these cases took place in an academic context, where freedom of speech and expression are clearly relevant. In both Phoenix and Miller, the tribunals commented on the “chilling” effect of discrimination on academics’ rights to express their beliefs.
• In Fahmy part of the Tribunal’s rationale for finding that the employer could not rely on the “reasonable steps” defence was that it did not provide training on gender critical beliefs. We recommend that training on freedom of expression and protected beliefs is provided to staff, either as part of your regular anti-discrimination training or as additional standalone training. As with all training, it should be regular, up to date, tailored to the employer’s context and ideally brought to life with eg case studies. We recommend that training starts by explaining that the topic of protected beliefs can be controversial and that the training is intended to encourage tolerance and respect of the rights of others to disagree.
  
  

With special thanks to Aishah Syeda, a current paralegal in the Employment team, for her help with this blog.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2024