As the saying goes, “Never discuss politics or religion.” But we all do. The anonymity of social media encourages polarised positions and vicious comments that can be shared instantly with millions. Personal beliefs unique to a particular life experience might, in the past, have remained unknown and unexamined. Increasingly however they find an audience and cause upset or even actual harm in ways that were never intended. And as we have seen in recent highly publicised Tribunal cases, the fallout can be devastating.
How can employers maintain a tolerant workplace, protect employees from conflict and, at the most extreme, avoid an expensive Tribunal claim?
In the UK we are rightly proud of our tradition of freedom of belief, which is enshrined in sections 26 and 27 of the Equality Act 2010
As set out in The Equality Act 2010 Explanatory notes the criteria for a belief to be “protected” is that it must be “serious and important” and connected to “weighty and substantial” aspects of life, “worthy of respect in a democratic society” “compatible with human dignity” and (vitally in this context) “not conflict with the fundamental rights of others.” Potentially, there are no limits to what could be viewed as a religion or belief (including a complete rejection of religion or belief) as individual claims are always considered through the prism of the legislation. Veganism, for example, has been accepted as a philosophical belief in some cases Casamitjana Costa v The League Against Cruel Sports [3331120/2018] but not in others Owen v Willow Tower Opco 1 Ltd [2400073/2022]
The most important thing to remember, perhaps, is that freedom of belief does not equate to freedom of action. It is the employee’s behaviour (rather than the beliefs that gave rise to it) that is usually determined by Tribunals to give legal grounds for dismissal.
For instance, in Dr Mackereth v The Department for Work and Pensions and another  EAT 99 the Claimant, a Christian healthcare professional, believed that male and female gender and biology were essential qualities that could not be altered.As a result of those beliefs, when he dealt with transgender service users, Dr Mackereth refused to use their preferred pronouns (which was a requirement of his job).
He claimed unfair constructive dismissal on the grounds that he had been discriminated against for his religious and philosophical beliefs, but the ET found that it was the manifestation of those beliefs in his behaviour towards service users that was incompatible with human dignity and conflicted with their fundamental rights.
What about activities outside the workplace? It very much depends on the context. The Equality Act 2010 says that an employee and employer can both be held responsible for discrimination if it happens “in the course of employment”. That could include for instance, a work party or a social media account that is linked to work.
In Mrs K Higgs v Farmor’s School [1401264/2019] the Claimant was dismissed following the reposting of anti-LGBTQ messages on Facebook. She claimed unfair dismissal on the grounds that she was entitled to freedom of belief and that the messages were privately shared amongst Facebook friends (although they included colleagues and parents at the school where she worked).
The Tribunal found that whilst her right to hold such beliefs were protected under equality regulations, the fact that she had re-posted upsetting material meant she had failed to consider the rights of others. Although she claimed she did not actually hold the extremist views expressed in that material, she also refused to agree not to repost similar material in the future, and the School were therefore entitled to dismiss her for gross misconduct.
The decision was successfully appealed to the EAT who did not consider the tribunal to have applied the correct test.
The EAT set out some helpful guidance as to the factors that might be taken into account in determining whether the manifestation of the belief was so objectionable as to justify the action taken by the employer:
- The content of the manifestation
- The tone used
- The extent of the manifestation
- The worker’s understanding of the likely audience
- The extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business
- Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk
- Whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon
- The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients
- Whether the limitation imposed is the least intrusive measure open to the employer.The case has been remitted to the Employment Tribunal and it remains to be seen whether in light of the above the dismissal was unfair.
It is inevitable that in any community, there will be a clash of views and opinions from time to time, but the concern for employers should always be to ensure that no one feels targeted or unsafe. As so often in employment matters, prevention is better than cure. A tolerant workplace is one in which everyone feels safe to be themselves, but where they are also mindful of the feelings and needs of others. A good anti-bullying and harassment policy is a start, but if it is just a piece of paper thrown at new employees along with everything else, it will be meaningless.
Discussing boundaries with employees, what is okay and what is not (particularly with reference to social media) is vital, In some roles (such as teaching and social work) the public persona of the employee is important, in others, less so, but regardless, no employee should be posting or forwarding violent or abusive content on a platform visible to colleagues.
Every workplace has its own particular sensitivities, depending on the location, mix of people and type of employment, so it is important for you to think about what kind of support suits your organisation best. Make it clear that employees can speak up if they feel uncomfortable or distressed and invest, if you can, in HR provided workshops that provide a safe space for them to discuss potential areas of conflict and agree boundaries. This can be invaluable in raising awareness about pitfalls in communication, for instance appropriate versus inappropriate language and behaviours, how to build empathy, listening skills, and conflict resolution, and be a real help even for those employees who are unlikely to cause any problem. Many people will simply not have given the issue any thought before. When the workplace as a whole recognises the concerns, it will become effectively self-policing.
If a complaint is made about an employee, deal with it swiftly through an investigation and disciplinary process. Depending on the scale of the problem you may consider a final written warning or dismissal, but if you retain the employee, make sure they have further training to address the issue.
Above all, set an example. Consider the blind spots you yourself may have, and how you communicate your point of view. Are you able to accept the views and lifestyles of others, whether or not you agree with them? Employers and managers set the tone for the whole workplace; if tolerance, civility and mutual respect are emphasised, the result will be a more pleasant and inclusive workplace for everyone.
Our solicitors are always on hand to give you friendly, professional advice. Please contact Zoe on 0203 858 9765 or email email@example.com. Mulberry’s has offices in Brighton and London.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.