Understanding
protected beliefs
Over the last couple of years, we’ve seen a steady increase in the number of employment tribunal claims where employees have successfully accused their employers of discrimination linked to beliefs that they hold or have expressed.
What are the changes?
The Equality Act 2010 protects job applicants and staff against direct and indirect belief discrimination, harassment and victimisation because of their beliefs, or lack of belief.
This goes beyond religious discrimination. What constitutes a belief is a matter of fact (which is determined by a tribunal) but all have to satisfy five tests to be protected:
- The belief must be genuinely held
- It must be more than just an opinion or viewpoint
- It must concern a weighty and substantial aspect of human life and behaviour
- It must have cogency and importance
- It must be worthy of respect in a democratic society.
The following beliefs have all recently been found to be protected:
- The belief that sex is immutable and cannot be changed (this is sometimes referred to as ‘gender critical’ beliefs)
- The belief that the charity Stonewall’ which campaigned to promote gender identity was ‘pernicious’
- The belief that Zionism is inherently racist, imperialist, colonial and offensive to human dignity
- Beliefs that oppose critical race theory, identity politics and ‘wokeism’.
That's not to say that everyone who shares these beliefs will be protected. A tribunal will evaluate each case individually and will look for evidence of how an individual’s belief system influences the decisions they make in their daily lives.
Employees don't have to keep their protected religious or philosophical beliefs to themselves; they have rights under Article 9 of the European Convention on Human Rights to manifest those beliefs and under Article 10 to express and hold opinions that others my find distasteful or offensive.
But both are qualified rights. You can take action against staff who inappropriately manifest their beliefs, such as proselytising or promoting their views in a way that is intrusive or offensive but not for simply expressing their beliefs.
What are the challenges for businesses?
If you get this wrong and discriminate against someone because of their protected beliefs, you may face a hefty compensation bill as these types of claims aren’t subject to financial caps. In addition to compensating staff for any lost earnings etc, they will also get a financial award to reflect the upset and hurt they have suffered by way of an injury to feelings award. There are three broad bands which are uprated each year in April and currently range from £1,200 for one-off isolated incidents to £58,700 for the most serious cases where there has been a lengthy campaign of harassment.
What actions should your business take?
This can be a difficult path to tread. It's not easy for employers to deal with fundamental differences in values or beliefs between colleagues or people they come into contact with. However, there are some steps you can take to make your workplaces genuinely inclusive of people with different beliefs and comply with your legal obligations:
1.
Have policies in place which set out the standards of behaviour you expect your staff to follow. You should be careful not to be too restrictive about what they can say, or do, in their own time, particularly where their comments or profile don't reference you as their employer. Employees are entitled to hold and express views on controversial matters of public interest even when those views offend, shock or disturb others or don't align with your EDI values. There are some bars to this - but they only apply to views that are not worthy of respect in a democratic society. This point has been interpreted to mean extreme views akin to Nazism or totalitarianism.
2.
If you allow your staff to openly discuss controversial topics at work, or to demonstrably align themselves with a particular cause, you can't limit these to views you or the majority of your staff deem acceptable. There is no hierarchy of rights, and you must be even handed in your approach. Don't pick and choose what beliefs you allow your staff to express.
3.
Make it clear that staff should be tolerant of, and respect, reasonably expressed views that they don't share. They should not automatically accuse people of being racist, homophobic, transphobic etc simply because they have different opinions. All colleagues should treat each other with respect and courtesy - particularly when they have a difference of opinion.
4.
Evaluate your approach to disagreement. Organisations that expect and welcome dissenting views are likely make better decisions and be mentally healthy places to work. They provide an environment where employees are able to speak up, whether they're sharing ideas, asking questions, expressing concerns or acknowledging mistakes.
Expert opinion
Individuals who have lost their jobs for expressing their protected beliefs are increasingly using crowd funding platforms to fund their legal costs. These cases generate huge amounts of media interest, speculation, commentary and debate – all of which can damage an employer’s reputation. Tribunal hearings are often ‘live tweeted’ which exposes the parties to a potentially huge audience. Putting in place sensible policies, training staff appropriately and resolving disputes at an early stage will help employers avoid costly, and sometimes embarrassing mistakes.
Charlotte Rees-John
Partner