Public discourse both in the UK and abroad has become increasingly polarised in the last few years. Brexit, Trump, climate change and, more recently, gender identity politics have dominated public debate and perhaps unsurprisingly, we have seen a trend of claims in the employment tribunal this year in which employees have alleged discrimination by their employers on the grounds of their beliefs. It is increasingly important that employers manage employee conduct and workplaces appropriately to ensure steps are taken to prevent and deal with issues around workplace discrimination on the basis of a protected belief.
What the law says and recent trends in courts and tribunals
It is unlawful for an employer to discriminate, harass or victimise its workers because of their religion or religious or philosophical belief (which includes a lack of that religion or belief). Not every belief can qualify as a protected philosophical belief and in order to qualify a belief must be genuinely held and:
- be a belief which is more than just an opinion
- be a belief about a weighty and substantial aspect of human life and behaviour
- have a certain level of cogency, seriousness and importance
- be worthy of respect in a democratic society, not incompatible with human dignity, and
- not conflict with the fundamental rights of others.
The belief does not need to be shared with others to qualify for protection.
Employment tribunals have found that beliefs on anti-fox hunting, climate change and a belief in democratic socialism intrinsic in the values of the Labour party are all capable of being protected as philosophical beliefs.
Earlier this year a Scottish councillor, Chris McEleny, claimed he had been discriminated against by the Ministry of Defence (MoD) on the basis of his political views on Scottish independence. The MoD suspended him and had his security clearance revoked shortly after he announced his candidacy for the Scottish National Party leadership election. An employment tribunal held that a belief in Scottish independence had "sufficient weight and importance to human life and behaviour to be philosophical in nature" to be capable of being a philosophical belief and the fact that there was a referendum in which 1.5 million people voted in favour of independence supported Mr McEleny's position that his belief had a sufficient level of cogency and importance to meet the test for a philosophical belief. The case will now go on to a full hearing to determine whether Mr McEleny was discriminated against by the MoD.
In the light of the tribunal's decision on Scottish independence, it is not inconceivable that a belief that the UK should remain or leave the European Union could itself amount to a philosophical belief; or perhaps an underlying belief in nationalism or Euroscepticism, or in free movement and internationalism, could be cogent enough to be a protected belief. Whether vegetarianism could be protected as a protected belief has also been tested. Mr Conisbee brought a claim against his former employer, Crossley Farms Ltd for discrimination based on his vegetarianism. The employment tribunal decided that vegetarianism was a lifestyle choice and not a philosophical belief capable of being protected under discrimination laws, distinguishing it from veganism, which it considered was a clear and cogent belief system. Mr Conisbee is appealing this decision.
Separately, an employment tribunal's decision is due on whether ethical veganism is a protected belief. Mr Casamitjana claimed that 'ethical veganism' is a protected belief and that his former employer, League Against Cruel Sports, unlawfully discriminated against him because he is an ethical vegan when he was dismissed for gross misconduct.
In a recent case that has resulted in a Court of Appeal decision, Ms Gray, a former Mulberry employee, claimed that she was discriminated against because of her philosophical beliefs after she was dismissed for refusing to sign a confidentiality agreement as part of her employment terms. Ms Gray argued that her belief in a human and moral right of ownership in her own creative output amounted to a philosophical belief, but the Court of Appeal disagreed and found that this belief lacked the level of cogency required to be a philosophical belief system.
And just last month, the preliminary hearing took place in a case brought by a former employee of the Centre for Global Development, Maya Forstater, who is arguing that 'gender critical' beliefs are a protected philosophical belief. Ms Forstater brought a discrimination claim against her former employer after she was dismissed for tweeting about her beliefs on gender identity in the context of the UK Government's proposal for 'gender self-identification' last summer. The tribunal decision has not yet issued its decision but it will be the first of its kind on this belief.
What practical steps can employers take?
Employers should be alive to the potential for fallout from employees expressing their beliefs in the workplace. For example, potential complaints can relate to:
- discrimination - eg if a manager overlooks an employee for a promotion because they believe the UK should leave the European Union
- harassment – eg if a heated discussion between employees about climate change creates an intimidating, hostile or offensive environment for those employees or their colleagues, and/or
- victimisation – eg if an employee is dismissed because they raised a concern that they were targeted because they do not believe in Scottish independence.
Employers can be vicariously liable for discriminatory actions of their employees committed during the course of their employment, unless employers can show they took reasonable steps to prevent such discrimination. Of course it is not just legal risk that businesses ought to take precautions against, discrimination claims around political belief can be costly both commercially and in terms of negative PR. Businesses should ensure that they:
- adopt and enforce a zero-tolerance approach to offensive language or conduct
- have up-to-date and consistently applied policies relating to anti-harassment, bullying and discrimination as well as social media policies which are communicated to employees on a regular basis
- consider guidance on the extent to which employees are entitled to express their views and what happens when protected beliefs conflict with the protected characteristic of another employee or if it is key to the business to remain politically neutral
- ensure effective disciplinary action for employees who breach rules in place on particular discussions or anti-discrimination, and
- provide specific training or guidance for employees in management or decision-making capacities and ensuring that key decisions relating to employees are appropriately documented by reference to objective business reasons.
While it was for many years quite rare to see claims for discrimination on the grounds of philosophical belief it remains to be seen whether the recent surge in tribunal cases indicates a wider focus on these issues and how the tribunals will deal with the evolving political landscape. What is clear however is that employers should be well-equipped to deal with a beliefs- diverse workforce, both in terms of prevention strategies and procedures to deal with any fall-out in the workplace.
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