By Céline Winham and Deborah Casale
Below, we examine the direction of recent religious and philosophical belief discrimination case law and consider what employers and employees should be looking out for when it comes to expressing personal beliefs at work.
With the rise of ‘bring your whole self to work’ mandates and social media usage (read: Twitter keyboard warriors) as prolific as ever, employers have needed to adapt to staff openly sharing their personal beliefs or lack thereof (religious or otherwise).
While we would all hope for respectful and tolerant debate, both online and in-person, there is a growing body of case law showing that there will inevitably be friction when dealing with strongly held views.
Section 10(2) of EqA 2010 sets out that ‘belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief” and Article 9 ECHR provides for a right to ‘freedom of thought, conscience and religion’.
Practitioners will be familiar with the five ‘Grainger criteria’ from the leading case of Grainger (which pre-dated the EqA 2010):
i. the belief must be genuinely held;
ii. it must be a belief rather than an opinion or viewpoint based on the present state of information available;
iii. it must be a belief as to a weighty and substantial aspect of human life and behaviour;
iv. it must attain a certain level of cogency, seriousness, cohesion and importance. It must have a similar status or cogency to a religious belief; and
v. it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
The fifth Grainger criterion (Grainger v) provides some qualified protection for ‘unpopular’ beliefs. The following case law has further clarified how this should be interpreted in practice.
Maya Forstater expressed her beliefs in the workplace and on social media that she believed that someone’s sex is immutable from their sex at birth and that someone’s gender identity is different from their sex. These are commonly referred to as ‘gender critical’ beliefs. Her contract was not renewed by CGD Europe because of her beliefs and she brought claims for discrimination.
In June 2021, the EAT confirmed that ‘gender critical beliefs’ are protected beliefs under the EqA 2010 and in July 2022, Ms Forstater won her claim of direct discrimination.
The EAT confirmed that the gateway for protection under Article 9 ECHR (and therefore s.10(2) of EqA 2010) should satisfy ‘very modest threshold requirements’ and that, once met, Grainger v should be considered with regards to Article 17 ECHR, which prohibits the use of the ECHR to destroy the rights of others. The EAT held that only beliefs that involve the gravest violation of the rights of others would be contrary to Grainger v in a democratic society and Ms Forstater’s beliefs did not meet this threshold.
Allison Bailey, a barrister, shared similar gender critical beliefs and brought a case against her chambers for discrimination because of her beliefs and against Stonewall for procuring or inducing (etc) chambers’ breach, respectively. She was critical of Stonewall for advocating what she referred to as ‘trans extremism’.
Ms Bailey succeeded in her claim for discrimination against her Chambers. The case against Stonewall was dismissed because there was no evidence that it had ‘instructed, caused or induced’ breaches of the EqA 2010. Ms Bailey has lodged an appeal against this finding.
Once again, the employment tribunal commented that for a belief not to meet Grainger v, it would have to be extreme and not just causing offence as part of the ‘dust and heat’ generated by conflict of opinion, which should be tolerated to avoid the ‘greater evil of censorship’. Expressing hostility to Stonewall’s campaigning was held not to seek to destroy the rights of others.
The tribunal noted that ‘toleration of difference’ is part of an ‘open and pluralistic’ society and that a belief does not have to be expressed ‘nicely’ in a democratic society. It also noted the need to consider whether it was an objectionable manifestation of a belief, rather than the belief itself, that was the reason for the alleged discrimination.
David Mackereth was a doctor undertaking medical assessments for social security claims for the DWP. He was a Christian and held gender critical views. The DWP and GMC guidance required staff to use patients’ preferred pronouns, which was held to be justified. Dr Mackereth refused to use service users’ chosen pronouns, contrary to the DWP’s policy.
The employment tribunal held that even though Dr Mackereth’s Christian faith was protected, his exact views about ‘impersonating’ a different sex did not meet the Grainger criteria. However, the EAT overturned this ruling and held that Dr Mackereth’s beliefs were protected under Grainger, but there was no discrimination as it was held that the employer’s measures were proportionate and necessary.
Ms Free Miles sought to establish discrimination on the basis of her ethical veganism belief, following on from Costa where ethical veganism was held to be a protected belief (after a previous decision which held that vegetarianism is not).
In distinguishing from Costa, in Ms Free Miles’ expression of her beliefs, she had advocated for trespass and theft if necessary to reduce animal suffering. Her belief therefore did not satisfy Grainger v as a belief in breaking the law was not worthy of respect in a democratic society.
Considerations to help practitioners manage similar cases in practice – employers
Distinguishing between a belief and the expression of it
Tribunals in recent case law have spent some time distinguishing between whether the individual had been discriminated against because of their protected beliefs (which is unlawful) or the way they have expressed those beliefs (which may not be). Those advising employers should be aware of this distinction and consider whether the individual’s expression of their belief (or lack of belief) is contrary to Grainger v and/or contrary to someone else’s Articles 9 and 10 (right to freedom of expression) or Article 17 ECHR rights.
Those advising employers should not wait for complaints to arise before they suggest implementing a social media policy, as was the case in Forstater. Instead, employers should have a comprehensive policy and ideally, implement training on the policy. Advisers may recommend that their clients’ staff mark their social media accounts as independent and not reflective of their employer’s views and that such views are to be expressed respectfully.
A social media policy will not be a panacea and may even be the smoking gun itself, if not drafted or implemented correctly. The same principle can also be applied to equality, diversity and inclusion policies. There is no requirement for beliefs to be part of the mainstream views or religions in order to be protected.
Advisers should therefore be careful not to let employer clients stray into treating some beliefs as more important than others or having policies giving preference to mainstream beliefs only. All beliefs that meet the Grainger criteria deserve equal protection. Advisers should warn employers that they cannot completely police what employees do or say online and the tribunal in Bailey warned against the ‘evil of censorship’.
It is acceptable to set out in policies that staff are not to proselytise or impose their beliefs on others (see Wasteney), but prohibiting the expression of controversial views alone may be discriminatory and a potential breach of Article 10 ECHR rights.
Equality and diversity training
In Forstater, the respondent’s witnesses, namely the line manager, did not come across well in cross-examination when questioned on explaining the reason for not renewing Ms Forstater’s contract. Where managers are trained on the distinction between a belief and an expression of a belief and what is acceptable, then they are more likely to be able to properly and fairly explain and justify any disciplinary conduct where an employee expresses a belief in an unacceptable manner (rather than inadvertently admitting it to be the belief itself).
That being said, Ms Forstater had covertly recorded the meeting where her line manager stated that the non-renewal was specifically because of her beliefs expressed. While employers can include covert recordings in disciplinary polices as examples of misconduct, if it is revealed in disclosure, it is likely that the tribunal will want to hear it. However, advisers may be able to refer to such conduct to undermine a claimant’s own honesty and, potentially, reduce any compensation awarded.
Applying the ‘mob rule’
If an employer gives in to pressure from a majority view or pressure group then any discrimination the ‘mob’ applies, the employer applies too. Ms Forstater’s colleagues reacted ‘viscerally’ to her views and badgered their employer to do something about her. In Bailey, colleagues were unsympathetic even after the claimant received death threats from members of the public and took the view that she was responsible for her own predicament. As a result, she was awarded aggravated damages.
In Bailey, the claimant considered that chambers were aligning themselves to Stonewall’s promotion of gender self-identity and had side-lined her because she did not share such beliefs. Advisers should warn employers against advocating for the priority of the rights of one group over another by endorsing views of pressure groups and be mindful of any regulator’s views on diversity and inclusion.
There has been some debate as to whether advocating for the popular ‘bring your whole self to work’ culture is helpful or not. Some employers may prefer to implement a ‘bring your professional self to work’ approach, in order to maintain clearer boundaries between professional and personal beliefs in the workplace.
Considerations to help practitioners manage similar cases in practice – employees
Failing to pursue conflict-resolution avenues before resignation
In Mackereth, the claimant was found to have resigned rather than been dismissed as he had jumped to the conclusion that he had been effectively dismissed before such a decision had, in fact, been made. Resigning too early is unlikely to be helpful in establishing discrimination if the discriminatory act has yet to have taken place, ie dismissal.
Distinguishing between a belief and the expression of it
As set out above, employment tribunals will distinguish between a belief and the expression of it. Just because a belief is protected under the EqA 2010 does not mean that an individual’s expression of it will be too. Article 10 ECHR is not an unqualified right as evidenced in Free Miles. While individuals may be able to express beliefs respectfully, they must accept that other people may express contrary views. If they overstep the mark, their employer may be able to lawfully take disciplinary action.
Although the scope of protected beliefs has expanded post-Grainger, cases will continue to turn on their particular facts. Employers and employees alike will need to ensure that a respectful tolerance of converging views is maintained; put simply in Voltaire’s words: ‘I disapprove of what you say, but I will defend to the death your right to say it.’
This article first appeared in the Employment Lawyers Association (ELA) Briefing in November 2022.