Discrimination because of protected beliefs: what do employers need to know?

Discrimination because of protected beliefs: what do employers need to know?

8th September 2022

Personnel Today

As words like ‘woke’ litter the public discourse and people are stirred to take positions on all sides of the so-called ‘culture war’, employers require a thorough understanding of protected beliefs.

Legal protections from discrimination based on protected beliefs are increasingly making headlines. This can be a tricky area for HR professionals, as conflicts of beliefs may arise in the workplace and controversial or offensive views may be protected.

What does the law require?

The Equality Act 2010 protects individuals from discrimination on the basis of “religious or philosophical belief”. Historically, the focus has been on how religious beliefs are protected in the workplace, but recently there have been a steady increase in philosophical belief cases.

To be protected, a belief must:

  • Be genuinely held.
  • Be more than just an opinion or viewpoint based on the present state of information available.
  • Relate to a weighty and substantial aspect of human life and behaviour.
  • Contain 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.

However, just because a belief is protected, it does not automatically follow that every expression of that belief will be protected. Discrimination law does not give an employee a free pass to use their beliefs to harass a fellow employee, for example.

In Mackereth v DWP (2022), a doctor working for the DWP argued that his gender critical beliefs meant he could not follow a policy of using transgender patients’ chosen pronouns. He was dismissed and this was found not to be discriminatory. His belief was protected, but the expression of it was not.

What beliefs have (and haven’t) been protected?

There is no exhaustive list of what beliefs are protected as each case will be considered on its facts. A wide range of beliefs have been protected by tribunals, including some surprising examples: a belief in climate change, a belief in the sanctity of life leading to being passionately anti-fox hunting, belief in Scottish independence, belief in national independence (in the context of EU membership), a belief that it is wrong to lie under any circumstances, various permutations of gender critical beliefs, and ethical veganism.

Recently, tribunals have confirmed that even beliefs that are offensive, shocking, or disturbing could be protected. Only very extreme beliefs (such as “pursuing totalitarianism” and “advocating Nazism”) would not be protected because they were not worthy of respect in a democratic society.

This sets a high bar that may create difficulties for employers seeking to create a diverse, welcoming, and inclusive environment for staff.

So, what beliefs won’t be protected? Ethical veganism that included believing there was an obligation to do unlawful acts to prevent animal cruelty. This failed the last stage of the legal test – a belief that required breaking the law was not worthy of respect in a democratic society.

Vegetarianism was found to be a mere “lifestyle choice” that lacked the necessary cogency for protection because there could be many different reasons for being vegetarian. That does not necessarily mean that vegetarianism couldn’t be protected in other cases with different facts.

Fear of catching Covid-19 was not a true belief, just an opinion. It was only about an aspect of human life and behaviour at a specific point in time, rather than a general position on a weighty and substantial aspect of human life and behaviour.

What should employers be doing?

It is likely that tensions will arise in the workplace, either where employees have opposing beliefs or an employee expresses views perceived by others as offensive or inappropriate.

Employers can – and should – take appropriate action when reasonably expected standards of workplace behaviour are breached. It is key to plan ahead and prepare.

Employers and HR professionals should:

  • Update policies: ensure your policies set out clear expectations of behaviour. A social media policy is also key, as beliefs expressed outside of work do not always stay separate from the workplace. Consider refreshing employee training on antidiscrimination and expected workplace behaviours.
  • Take issues seriously: the test for a belief to be protected is low, so employers should not discount employee beliefs immediately but should approach these issues in a fair and reasonable way.
  • Train managers on these issues to ensure they understand the law and how to handle issues that arise in this area sensibly and proportionately.
  • Encourage informal resolutions: encouraging an informal resolution before positions become entrenched can nip disputes in the bud early.