Belief Discrimination in the Workplace
Belief Discrimination in the Workplace
“Never discuss Religion or Politics in polite company”
- Mark Twain
The European Convention on Human Rights (ECHR), drafted in 1950, aimed to ensure liberty and freedom would prevail in a post war Europe shattered by the horrors of Fascism and under the threat of Soviet Communism. Its authors would perhaps be surprised to learn that seventy years later the ECHR would be relevant to HR departments dealing with workplace disputes. Whether it’s attributable to social media, Culture Wars, Brexit or Donald Trump employers increasingly find themselves having to manage employees with strong and divergent beliefs. Work often brings together people who might never otherwise interact.
Article 9 ECHR guarantees the absolute right to freedom of thought, conscience and religion, however the manifestation of belief is a qualified right subject to reasonable societal protection. Article 10 ECHR guarantees the right to freedom of expression subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.
Religious and Philosophical Belief is a protected characteristic under s.10 Equality Act 2010 (EqA). Direct discrimination on the basis of a protected characteristic is unlawful whilst indirect discrimination is permitted only if the business can show it to be a reasonable measure to achieve a legitimate aim.
Flashpoints tend to arise around dress codes, corporate image protection, politics and social media use.
What is a Philosophical Belief under s.10 EqA?
In Grainger v Nicholson, where the Claimant’s deeply held conviction about climate change was held to be a philosophical belief, the Judge stated that the belief must be;
i. Genuinely held
Not an opinion or viewpoint based on the present state of information available
Concern a weighty and substantial aspect of human life and behaviour
Attain a certain level of cogency, seriousness, cohesion and importance
Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others
Philosophical Belief does not need to constitute a fully-fledged system of thought, eg Pacifism or Vegetarianism can be philosophical beliefs. Political philosophies such as a belief in Conservatism, Liberalism or Socialism can be Philosophical Beliefs, support for a particular political party is more likely considered an opinion or viewpoint. Philosophical beliefs may include scientifically provable beliefs such as belief in evolution.
In Forstater v CGD the Claimant’s gender critical feminist views - the belief that sex is an immutable characteristic and that, for reasons of privacy, safety, and fairness access to same sex spaces should be by biological sex rather than gender identity – satisfied the 5th Grainger criteria of being worthy of respect in a democratic society. The Tribunal held that only beliefs which pose an extremely grave threat to ECHR principles, akin to Nazism or totalitarianism, would fail to satisfy the 5th Grainger criterion, and that Forstater’s beliefs and expression of her views got ‘nowhere near’. Following Forstater, the Barrister Alison Bailey, Social Worker Rachel Meade and University Lecturer Professor Jo Pheonix have all won claims for discrimination based on feminist gender critical belief.
Religious Belief
A balance is struck between manifestation of religious belief and business interests. Christian BA employee Nadia Eweida established her right to wear a necklace cross because it was discreet and did not detract from her professional appearance, whereas in the linked case of Shirley Chaplin, a hospital nurse, it was reasonable to ask her to remove her cross necklace for clinical safety. Religious belief which conflicts with providing services to sections of the public is unlikely to be protected, eg. Registrar Lillian Ladelle, who refused to officiate in same sex ceremonies, failed in her claim for Religious belief discrimination.
Conclusions
The manner in which beliefs are expressed is important, as is the place and context. Offence, disagreement, or controversy, are not in themselves reasons for a belief not to be protected. Where a belief leads to conscientious objection to certain work tasks or impacts on H&S or legal duties, a discrimination claim is unlikely to succeed. Businesses should be wary of committing themselves to vaguely worded, worthy sounding pledges regarding social or political issues. An over zealous policing of employees’ beliefs may well lead to successful claims for discrimination.
PETER HARTHAN
BARRISTER
7 HARRINGTON STREET CHAMBERS
2nd February 2024
